author: BOND, C.

text:
    JULIA MINTON et al. v. ALMARINDA STEINHAUER, Appellant.
    Division One,
    May 31, 1912.
    1. ABATEMENT OF ACTION: Ejectment: Transfer of Property by Plaintiff: Revivor. An action in ejectment does not abate by reason of the fact that the original plaintiff, after judgment and pending appeal, conveyed the land in fee to another and then died. The method of revivor in the Supreme Court, after sci. fa. and upon stipulation bringing in the heirs and legal representatives of the respondent, was the proper and only method in which the action could have been revived in this court, except by consent of all the parties in interest entered of record.
    2. LEASE: Ending Term: Ejectment. A lessor may not bring ejectment for the premises before terminating a letting thereof in the manner prescribed by law.
    3. -: Tenancy from Year to Year.' A lease set out in the opinion is held to create a yearly tenancy, and a holding over continued the same tenancy, since that- was the intention of the parties.
    4. -: -: Ending Term: Notice. A tenancy from year to year can only be ended by the giving, not less than sixty days before the end of the year, of notice in writing by the landlord to terminate the same.
    Appeal from Holt Circuit Court. — Hon. W. G. Ellison, Judge.
    Reversed and remanded.

      T. G. Dungan for appellant.

      H. T. Alhire for respondent.
   BOND, C.

Plaintiff brought ejectment for four lots as described in the dedication of land for a site for the town of FortescueJ Holt county, Missouri, made by Jacob Book and recorded on the 8th day of August, 1890. Defendant answered (1st) by a gen-' eral denial; (2d) a plea of the Statute of Limitations, and (3d) that the lots in question were part of a tract of land purchased by one Book on April 7, 1887, and laid off and platted and dedicated to public use as a site for the town of Fortescue; that while he owned said land, the said Book sold to defendant the four lots described in plaintiff’s petition and another small strip for twenty-five dollars per lot, to be paid when a good deed could be made; that defendant went into possession under this contract and before her grantor filed the plat of his dedication for record; that she built a house worth $400, a stable worth $100, and other improvements on said lots — all aggregating $600; that subsequently litigation affecting the title of her grantor took place, wherein the deed held by him was adjudged to be a mortgage, and a redemption was had by the mortgagor, who afterwards conveyed the lands to plaintiff; that defendant offered plaintiff payment of the price which she agreed to give but plaintiff declined to receive it or to give her a deed; that his purchase was with full knowledge of her rights in the premises; that plaintiff by frauds and threats induced defendant to affix her name to the following contract, to-wit:

“Lease oe Farm.

“This indenture made July 29, 1903, between John R. Minton, first party, and Almarinda Steinhauer, second party, "Witnesseth: That first party, in consideration of covenants and agreements to be kept and performed by second party, demised and leased to second party all those premises in Holt county, Mo., described as follows, to-wit: Lots twelve (12), thirteen (13), fourteen (14) and fifteen (15) in block number one (1) in the town of Forteseue in Min-ton township, Holt county, Mo., as same are designated upon the recorded plat of said tow To have and to hold for a term commencing on the 1st day of March, A. I). 1903, and ending on the last day of February, A. D. 1904.

“Second party agrees to pay said first party as rent for said premises ten ($10) in cash on or before the 1st day of December, 1903, second party nor her legal representatives to assign without written assent of first party and to deliver premises in good repair at termination of lease.

“It is understood that the buildings now standing upon said land belong to said Almarinda Steinhaner and she the said Almarinda Steinhauer is permitted to remove said house from said land at the termination of this lease. It is further positively understood and agreed that said second party waives any and all notice to quit said premises and promises to vacate said property at the termination of this lease and peaceably deliver up to said first party the possession thereof at the termination of this lease without any notice whatever so to do. ’ ’

Defendant prayed that plaintiff be decreed to execute a deed to her upon payment of the purchase price of the lot. Issue was joined. There was evidence of a record title to the land in plaintiff, and that defendant had accepted from him the above lease of the land, and that plaintiff obtained from defendant twenty dollars, which he claimed was rent for two years, but which she claimed was a payment on the purchase price of the lots. Plaintiff testified he gave defendant a notice to terminate her tenancy on the 29th of January (the year not given) in thirty days from that date. The evidence was conflicting as to the acceptance of the lease by defendant. She testified that she signed the paper without reading or understanding it; that she did so because plaintiff and his attorney threatened to put her .out of her house; that they came to her three times to get her signature. Plaintiff’s attorney testified that he read the paper over to her.

The -court rendered judgment for possession in favor of plaintiff and awarded him fifteen dollars and two dollars per month until possession given, and ordered a writ of restitution. Defendant appealed. Thereafter the plaintiff died, and the cause was revived in this court on October 10, 1911. On April 9, 1912, defendant filed in this court a motion to abate and dismiss plaintiff’s action on the ground that prior to his death plaintiff had conveyed the land in fee to a third party.

OPINION.

I. Under the facts stated, this action does not abate. The motion to that effect is based upon a misconception of the applicatory law. [Smith v. Phelps, 74 Mo. 598; State ex rel. v. Philips, 97 Mo. 331; Wilson v. Darrow et al., 223 Mo. 520; R. S. 1909, sec. 1924.] The fact that the plaintiff died after the judgment in his favor in the trial court and the lodgment of this case in this court by defendant’s appeal, did not work an abatement of the action, since the cause of action belonged to that class which survives the “death, marriage or other disability of a party.” It being one in which title and possession of real estate were the only issues involved and not a mere personal right to recover, which, with certain statutory exceptions, would abate under the common law upon the death of the party entitled to sue. [R. S. 1909, secs. 5425, 5426, 5427, 5428.] It follows that the revivor in this court after a sci. fa. and upon stipulation bringing in the heirs and legal representatives of the respondent was the proper and only method in which the action could have been revived in this court, except by consent of all parties in interest entered of record. The fact that prior to his death the respondent may have conveyed the land sued for to a third party would not as a matter of law require the substitution in this court of such person in the stead of the plaintiff or his heirs and legal representatives in case of his death. [Wilson v. Darrow et al., 223 Mo. 520.] As the case is now revived the legal representatives of the deceased respondent stand in his place and are subject to the same trusts which devolved upon him after his conveyance of the land and prior to his death. The motion to abate this action is therefore overruled.

II. This leaves for review the merits of the case upon the errors assigned by appellant. During the. progress of this cause in the trial court, the trial judge used the following language: “Under the present status of the case, counsel for plaintiff resting his case entirely upon the validity of the. lease, and the relation of landlord and tenant, and the notice to quit, counsel had better coniine himself to that issue. If the court find the lease is void, he will find for defendant. If he will find the lease is good and the proper notice given, he will find for plaintiff. I understand plaintiff’s counsel to limit himself voluntarily to that issue. That is the only issue anyhow. ” It is thus apparent that the single question determined in the trial court was the validity of the lease to defendant and the sufficiency of the notice given to terminate the same.

We will first review the ruling as to the notice to quit, for if that was erroneous it will not be necessary to consider whether the lease was or was not fraudulently procured from defendant, for the law is clear that a lessor may not bring ejectment for the premises before terminating a letting thereof made by him in the manner prescribed by law. [Tarlotting v. Bokern, 95 Mo. 541; Real Estate Co. v. Hotel Co., 202 Mo. 597.]

As to the nature of the lease the plaintiff testified among other things: “It was my intention only to charge her for the use of the land. ’ ’ This is also shown by the terms of the lease itself, for it contains a clause showing that the buildings standing on the land belonged to the defendant and that she was entitled to remove them at the termination of the lease. Under these facts and by the express language of the lease' itself a yearly tenancy was created, commencing in March 1903, and ending on the last day of February, 1904, and the subsequent holding over continued the same tenancy, since that was the intention of the parties as shown by the claim of the plaintiff that he had received from defendant rent for two years. [Tiefenbrun v. Tiefenbrun, 65 Mo. App. 253; Kroeger v. Bohrer, 116 Mo. App. 208; Lewis v. Perry, 149 Mo. 257.] Under the statutes of this State, such a tenancy could not be dissolved by the giving of a notice to terminate it in one month. The statute authorizing the termination of tenancies upon prior notice of one month applies to tenancies for less than one year and to oral leases of buildings and structures as well as the premises occupied by them in cities, towns or villages. [R. S. 1909, sec. 7883; Kroeger v. Bohrer, 116 Mo. App. 208; Delaney v. Flanagan, 41 Mo. App. 651.] In the case of a tenancy from year to year, such as the one under review became after a holding over with that intention [Tiefenbrun v. Tiefenbrun, 65 Mo. App. 253] the tenancy can only be ended by the giving of notice in writing by the landlord to terminate the same not less than sixty days before the end of the year. [R. S. 1909, Sec. 7882.]

The record in this case shows that the tenancy in question, even if it existed, had become a yearly one, and that no notice to terminate the same’ was given as. required by law. It follows that the judgment in favor of the plaintiff was erroneous. It is therefore reversed, and the cause remanded.

Brown, G., concurs.

PER CURIAM. — The foregoing opinion of Bond, 0., is adopted as the opinion of the court.

All the judges concur.


source: Caselaw Access Project

license: Public Domain

text:
    JOHN KUCZMA, Administrator of Estate of THADDUS LUBIEWSKI, and VICTORIA LUBIEWSKI, Appellants, v. JOHN DROSZKOWSKI.
    Division One,
    May 31, 1912.
    X. APPEAL: Affidavit: Jurat Supplied Nunc Pro Tunc. The failure to affix a jurat to an affidavit for appeal when filed, is cured by a subsequent order of the trial court, made upon a proper showing, directing the clerk of that court to attach his jurat by nunc pro tunc entry as of the date of the filing of the affidavit.
    2. JUDICIAL NOTICE: Terms of Circuit Courts. The Supreme Court takes judicial knowledge of the beginning of the terms of the circuit courts as fixed by statute.
    3. -: Days of the Month. The Supreme Court takes judicial notice of the fact that the first Monday in April, 1909, was not the first day of that month.
    4. -: Appeal: Fixing Term of Circuit Court. The abstract recites that an appeal was granted April 1, 1909, but does not show that such appeal was allowed on one of the days of the February term. H&ld, by the court, taking judicial notice of the fact that a term of the trial court began on the first Monday in April, and that the first Monday in April, 1909, was not the first day of that month, that the first day of April was a part of the February term, where the statement in the abstract implies that no adjournment had taken place prior to the meeting of the April term.
    5. APPEAL: Record Proper: No Recital of Filing and Overruling of Motion for New Trial: Bill of Exceptions not for Review. The fact that the abstract of the record proper fails to show that a motion for a new trial was filed and overruled, and that the only averment in relation thereto is contained in the portion of the abstract setting forth the hill of exceptions, does not authorize the dismissal of the appeal or necessitate the affirmance of the judgment. The hill of exceptions cannot he reviewed, hut the Supreme Court can consider the appeal upon the record proper, including the decree rendered in the court below.
    6. -: -: -: -: Finding of Facts. Where the finding of facts and separate conclusions of law in an equity case were a part of the hill of exceptions, though not incorporated in the judgment, and the hill of exceptions cannot he reviewed, the Supreme Court cannot determine whether or not the decree rendered upon the special finding was correct. This is true for the further reason that this is an equity case, while the statute requiring the trial judge, upon request, to state in writing his conclusions of facts found separately from his conclusions of law, pertains only to legal actions.
    Appeal from St. Louis City Circuit Court. — Hon. Hugo Muench, Judge.
    Affirmed.

      L. C. Kingsland for appellants.

      William Hilherbaumer for respondent.
    (1) The motion of respondents, on file in this case, to have the judgment of the circuit court affirmed, or the appeal dismissed, should be sustained: (a) Because no proper affidavit of appeal was filed in this cause. Hence this court acquires no jurisdiction to hear this appeal. Peters v. Edge, 87 Mo. App. 283; Rosenberger v. Express Co., 155 Mo. App. 627. (b) Because the record as brought to this court by appellants does not show that an affidavit of appeal was filed, or that an appeal was allowed at the same term at which a judgment was rendered in said cause, dr a motion for new trial was overruled. And further, said record does not show that any motion for a new trial whs filed in the circuit court, or that any such motion was overruled. Either of these defects in the record is fatal to this appeal. Pennowfsky v. Coerver, 205 Mo. 135; Wallace v. Libby, 231 Mo. 343; Keaton v. Weber, 233 Mo. 693; Harding v. Bedol, 202 Mo. 625.
   BOND, C.

This suit to redeem was begun on the 16th of September, 1908, by the administrator and widow of a mortgagor of real estate against the purchaser at a foreclosure sale made on July 6, 1908. The petition alleged that the sum bid at such sale was a grossly inadequate price; that the trustee executed a deed and turned over possession to the defendant on the day of sale; that plaintiffs first heard thereof on the 10th of July, 1908, and tendered defendant the principal and interest and all costs of sale and all legal expenses, and asked to ■ redeem the property, which tender defendant,refused; that plaintiffs then gave notice of their intention to redeem, and on the 30th of July thereafter filed a bond as required by law. The answer admitted the purchase by defendant and the possession of the property by him, and denied the other allegations of the petition. The circuit judge found that the allegations of the petition were fully sustained by the evidence adduced on the trial, and filed a memorandum óf his findings of fact and conclusions of law, which show that he denied relief to plaintiffs upon the theory that no notice of intention to redeem was given on the day of sale. From that decree plaintiffs appealed to this court. The defendant having since died, it is now revived against his representatives and heirs at law.

OPINION.

I. It is urged by respondent, that no jurisdiction was vested in this court of this appeal for the reason that an affidavit therefor filed in the court below did not have a jurat affixed to it at the time it was filed. This point cannot be sustained. A supplemental abstract filed by appellant discloses that, upon a proper showing in the court bel-ow, the clerk of that court was ordered to attach his jurat to the affidavit for appeal in this case on April 1, 1909 by nunc pro tunc entry as of date of the filing of the affidavit. This was proper and cured the imperfection. [Cooley v. Railroad, 149 Mo. 487; R. S. 1909, sec. 2120.]

The further contention of respondent, that the abstract on file does not show that the appeal recited therein to have been allowed on April 1, 1909, was allowed on one of the days of the February term of said court, cannot be sustained. This court takes judicial knowledge of the beginning of the terms of the circuit courts as fixed by statute. Under the law the circuit courts of the city of St. Louis hold five terms each year, beginning on the first Monday of the months of February, April, June, October, and December. In 1909 we know judicially that the first Monday in April was not on the first day of the month, hence the first day of April was a part of the February term of the circuit court unless it had sooner adjourned. The statement in the abstract implies that no adjournment had taken place prior to the meeting of the April term. We rule this contention against respondent.

It is finally urged by respondent that so much of the abstract filed by appellant as relates or as purports to give entries upon a record proper in the court below, fails to show that a motion for new trial was filed and overruled, and that the only averment in relation to that is contained in the portion of the abstract setting forth the contents of the bill of exceptions. This point is well taken, but it does not authorize the dismissal of the appeal or necessitate the affirmance of the judgment. It. simply excludes from review the contents of the bill of exceptions or any assignment of errors thereto, but leaves us free to consider the appeal upon the record proper including the decree rendered in the court below. [Hanks v. Hanks, 218 Mo. l. c. 676; Keaton v. Weber, 233 Mo. 691.] It is, however, insisted by appellant that tbe fact that nothing contained in the bill of exceptions is presented for review does not deprive this court of the right to determine whether or not the decree rendered upon a special finding of facts was correct. The finding of facts and separate conclusions of law in this case were a part of the contents of the bill of exceptions as set out in the abstract. They were not incorporated in the judgment, which, as shown by the transcript on file, was simply a dismissal of the suit without prejudice. This bill of exceptions is not before us, since the abstract of the record fails, to show that a motion for new trial was filed and overruled. For that reason alone we cannot pass upon the correctness of the legal theory applied by the trial court to the facts found by him as shown in the memorandum thereof inserted in the bill of exceptions. But we could not do so for another reason. This is an action in equity, and by a decision of this court, in Banc, the statute requiring, upon request, the .trial judge to state in writing his conclusions of facts found separately from his conclusions of law, pertains only to legal actions. [Walther v. Null, 233 Mo. l. c. 110; Miller v. McCaleb, 208 Mo. 572; R. S. 1909, sec. 1972.] Some intimation of a different nature is contained in Bower v. Daniel, 198 Mo. l. c. 318, but it will be seen from a recital of the facts in that case (Ibid., 297) that the special findings made by the court were ‘£ spread upon the records of the court, ’ ’ and were agreed to be taken as true by the parties except as to certain items. The appellant duly excepted to 'the record, and thereby secured a review of the facts recited in the decree of the court below as a part of the record proper. This furnished a sufficient basis for the ruling in that case and made it unnecessary to make any suggestion, as to the effect, in a proceeding in equity, of a finding of facts made by the chancellor whether incorporated in his decree or not. Our view being thus restricted to a consideration of the pleadings and judgment of -dismissal without prejudice, it cannot be said that tbe latter was unwarranted by tbe former. It must therefore be affirmed.

Brown, C., concurs.

PER CURIAM. — The foregoing opinion of Bond, C., is adopted as the opinion of the court.

All the judges concur; Woodson, J., in result.


author: LAMM, J. GRAVES, P. J.

text:
    A. FRITZ and J. E. GROH, Partners under Firm Name of HOBERG MILLING COMPANY, Plaintiffs in Error, v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY.
    Division One,
    May 31, 1912.
    1. APPEAL: Substantial Right: Demurrer: Error in Instructions, Evidence, etc. If plaintiff is allowed all his competent proof and makes no case on the facts on which liability can be predicated and is unsuccessful at the trial, error in defendant’s instructions, or error in the admission of evidence on defendant’s part, does not materially affect the merits of the action or substantial rights of plaintiff. If plaintiff made no case for the jury, a judgment for defendant will not on appeal be reversed because of error in defendant’s instructions or in the admission of evidence in his behalf.
    2. FIRE: From Railroad Engine: Negligence. Under the statute (Sec. 3151, R. S. 1909), making a railroad company liable “to every person and corporation whose property may be injured or destroyed by fire communicated directly or indirectly by locomotive engines in use upon the railroad,” it is not necessary to either allege or prove negligence in order to fasten liability on the railroad company, but it is necessary to charge and prove that the fire was actually communicated to the property by a locomotive engine in use on defendant’s railroad. Plaintiff cannot recover by mere proof of a fire in a building adjoining the track and the presence of a locomotive on the track.
    3. DEMURRER TO EVIDENCE: Things Taken as True, etc. On a demurrer to the evidence,, defendant’s testimony, where contradicted, is taken as false; plaintiff’s whether contradicted or not, is taken as true; and discrepancies, contradictions between witnesses or self-contradictions by a witness, together with, the credibility of the witness and the weight to be given to his testimony, are for the jury. Plaintiff is entitled to the grace of having allowed every inference springing reasonably from the proof.
    4. -: Circumstantial Evidence: Fire from Railroad Engine. Whore the evidence relied on to show the origin of the fire is strictly circumstantial, it should have a tendency to exclude any other conclusion than the principal or ultimate fact. The soundest test of the validity of that sort of evidence is, that no other theory than the hypothesis upon which the conclusion is based, can be formed.

      5. -: -: Insufficient to Sustain Verdict for Plaintiff: Fire from Railroad Engine: Erroneous Instructions and Evidence for Defendant. And tested by that rule it is held in this case, after a full review of the evidence and allowing as true all of it in plaintiffs’ favor, and drawing therefrom every favorable inference, that no verdict for plaintiffs could be permitted to stand, since the whole trend of the testimony points to the conclusion that the fire originated inside their mill, and that it was communicated from defendant’s engine is at best only possible conjecture; and, therefore, any error in instructions given for defendant, and any evidence in its behalf erroneously admitted, are not substantial error and will not authorize a reversal of the judgment based on a verdict for defendant, and is therefore not considered.
    6. -: -: Fire from Railroad Engine: Sparks in Other instances. In a suit to charge a railroad company with having set fire to plaintiffs’ mill hy sparks from its locomotive engine, it is permissible to show the distances a locomotive may throw a spark and ignite combustible matter; but the value of that sort of testimony depends upon similar conditions of wind and weather and surrounding circumstances, and should be so limited.
    .7. -: Verdict Based on Conjecture: Set Aside by Trial Court. A verdict for plaintiff unsupported by the evidence and based upon mere conjecture, should he set aside by the trial court; and where that would have been its duty, a verdict for defendant will not on appeal be disturbed.
    Appeal from Lawrence Circnit Court. — Eon. F. G. Johnson, Judge.
    Affirmed.

      J. V. McPherson and Fyke S Snider for plaintiffs in error.
    (1) The court erred in permitting counsel for defendant, in his opening statement, to state to the jury: “I allege they were fully insured, and were fully paid by the insurance company, that the insurance company took a subrogation and there is no authority for the plaintiffs to sue.” And the court erred in overruling plaintiff’s objection to that statement. Gore v. Brockman, 138 Mo. App. 231; Fuller Co. v. Dassagh, 101 111. App. 664; Marigold v. Traction Co., 80 N. Y. Supp. 861; Iverson v. McDonald, 36 Wash. 73. (2) It was erroneous and highly prejudicial to permit defendant to get before the jury the fact that plaintiffs had insurance and had collected insurance money. Matthews v. Railroad, 142 Mo. 645; Erhart v. Railroad, 136 Mo. App. 617; Foster v. Railroad, 147 Mo. App. 547. (3) The court erred in overruling plaintiff’s objection to these questions: “Q. Up to that time had you heard it contended in Groh’s presence that somebody had broken into the mill and set it afire? Q. Did you ever hear it contended that the railroad had set it afire until after the adjuster came there and the insurance company had settled?” (4) One man is as capable of judging how far a spark will fly and live as another. It is not a question for experts. It is for the jury, upon all the facts to determine that question. Glasgow v. Railroad, 191 Mo. 347; Rogers on Expert Testimony, p. 8, sec. 5, p. 18, sec. 10; Graney v. Railroad, 157 Mo. 666; Hurst v. Railroad, 163 Mo. 309; Ayers v. Railroad, 190 Mo. 228; Lee v. Knapp & Co., 155 Mo. 641. (5) The court erred in overruling defendant’s objection to these questions propounded by defendant to its section foreman: “Q. Did anyone come to you to secure or borrow matches? Q. What did he say?” Such evidence was purely hearsay and ought to have been excluded. Field v. Railroad, 113 Mo. App. 645. (6) The conduct of defendant in making its offer of proof, in the presence of the jury, to the effect that plaintiffs had been paid $4900 insurance money; that one of plaintiffs’ counsel was present assisting plaintiffs, and that he represented the interests of the insurance company in this litigation; that the policy of insurance contained a subrogation clause, notwithstanding the court sustained plaintiffs’ objections to each of the foregoing offers, was prejudicial, and such offers should have been made. Iverson v. McDonald, 36 Wash. 73; Marigold v. Traction Co., 80 N. Y. Supp. 861. (7) The court erred in giving this instruction for defendant: “The court instructs the jury that the evidence upon which the plaintiffs seek to recover in this action is purely circumstantial, and if the jury find that the circumstances connected with the origin of said fire are more consistent with the.theory that it caught from some other source than that it was set out or communicated by an engine of the defendant, your verdict will be for defendant.” It is a comment on the evidence and the weight thereof. There was no substantial evidence upon which to base a theory that it caught from some other source.

      Robert T. Railey and Edward J. White for de-. fendant in error.
    (1) The plaintiffs’ evidence was. insufficient to establish any reasonable probability that the defendant’s engine had set their mill on fire; and the evidence of the plaintiffs showing that the fire was not discovered for over three hours after the defendant’s train passed, and failing to show that the engine pull-, ing the train was emitting sparks at the time, or that this engine had ever emitted sparks and the evening being damp, misty and snowy and the air full of moisture, plaintiffs failed to establish a prima facie case for the jury-, and the defendant’s demurrer to the evidence of the plaintiff should have been sustained. Gibbs v. Railroad, 104 Mo. App. 276; Manning v. Railroad, 137 Mo. App. 631; Peck v. Railroad, 31 Mo. App. 123; Bank v. Railroad, 98 Mo. App. 330; Peffer v. Railroad, 98 Mo. App. 291; Punk v. Railroad, 123 Mo. App. 169; Otis v. Railroad, 112 Mo. 622; Sheldon v. Railroad, 29 Barb. 226; Railroad v. De Groff, 29 Pac. 664; 1 Amer. & Eng. Ency. Law, 512; Wheeler v. Railroad, 67 Hun,- 639; Railroad v. Morton, 3 Colo. App. 155; Railroad v. Blatz, 114 Ind. 661; Musselwhite v. Railroad, 4 Hughes (U. S.), 166; 13 Amer. & Eng. R. Cas. 479. (2) It was not error under the defense pleaded in the answer, to prove that the plaintiffs had been fully paid the entire value of their property by the insurance company and that the cause' of action had been assigned to the insurance company, and instead of excluding this defense the court should have permitted it to stand before the jury, (a) This defense was a proper one, because the insurance company, upon the payment of the value of the property destroyed by the fire, was subrogated to the extent of their payment, to the remedies of the insured and succeeded to the entire cause of action in controversy. Ins. Co. v. Railroad, 74 Mo. App. 106; Sheldon on Subrogation, sec. 230; Ins. Co. v. Railroad, 149 Mo. 177; Railroad v. Ins. Co., 139 U. S. 223; Railroad v. Ins. Co., 59 Kan. 432; Ins. Co. v. Railroad, 73 N. Y. 399; Ins. Co. v. Railroad, 132 N. C. 75; Ins. Co. v. Walsh, 18 Mo. 230; Clark v. Ins. Co., 19 Mo. 54; Ins. Co. v. Stave Co., 61 Ark. 1; 24 Am. & Eng. Ency. Law, 193; Ins. Co. v. Hutchings, 21 N. J. Eq. 107; Ins. Co. v. Railroad, 73 N. Y. 399; Blanchard v. Engine Works, 142 Mo. App. 319; 4 Cooley’s Briefs on Ins., pp. 39, 27; Allen v. Railroad, 94 Wis. 93. (b) The action being at law, under the code of this State, if the plaintiffs had been paid the full value of their property and had assigned the right to recover for any destruction thereof, the action would have to be brought in the name of the insurance company as the real party in interest. R. S. 1909, sec. 1729. Under this provision of the code, the assignee is the real party in interest and must sue in his own name. , Dickey v. Porter, 203 Mo. 1; Spelter Co. v. Ins. Co., 71 Mo. App. 658. (c) But whether the defense pleaded in the answer was competent or not, in striking it out and in refusing to admit evidence to establish that defense and in giving the plaintiffs’ instruction 1, telling the jury that the fact that the property had been insured and that the plaintiffs had received certain money from the insurance companies, could not in any manner diminish the plaintiffs’ claim against the defendant, if its engine had burned the mill, any possible error resulting from the statement of plaintiffs ’ counsel to the jury- and the reading of this defense set up In the answer, was forever taken away from the defendant and any possible injury to the plaintiff from counsel’s statement in connection with this defense, was fully cured. Peck v. Traction Co., 131 Mo. App. 143; State v. Gregory, 170 Mo. 598; Smith v. Butler, 48 Mo. App. 663; Lumber Co. v. Hartman, 45 Mo. App. 647; Obert v. Strube, 51 Mo. App. 621; Ruth v. Railroad, 70 Mo. App. 190; Wendler v. Furnishing Co., 165 Mo. 127.
   LAMM, J.

Plaintiffs (a firm) owned and ran a grist mill hard by defendant’s railroad at a way station, Hobferg, in Lawrence county. In the shank of the evening of January 10, 1908, mill and content's (barring a salvage of the boiler and engine, put at $1000 to $1500) were burned. Alleging the fire caught from defendant’s locomotive, plaintiffs sued in the Lawrence Circuit Court, putting their damages at $17,163.10.

On issues joined, the jury found for defendant. From a judgment following, plaintiffs appeal — assigning error in that the court permitted counsel in his opening statement to make prejudicial remarks, admitted incompetent testimony, permitted repeating prejudicial questions, erred in refusing to strike out testimony and in giving an instruction. For defendant it is argued, contra, that there is no such error. Further, in effect, that plaintiffs made no case; hence (counsel say) an asked demurrer to the evidence should have been given, and that such alleged error, if any exists, does not affect the merits or concern an appellate court.

Such, in outline, are the issues below and here.

I. The administration of justice cannot be too often or too much quickened by recourse to salutary statutes intended to produce just practical results— this, as over against the vulgar and pernicious fallacy that a law suit on appeal is a mere game of wits to be played according to highly artificial rules, over which “game” we sit as a mere umpire, according points to one player or another by the dry and lifeless rules of the game for the s.ake of the game itself. Elevated and uniform justice could not be administered without rules. If there were no rules, we would be governed by men, not laws, by discretion, a crooked metewand, not by fixed rules known to all. Order is not only Heaven’s first law, but order is of the essence of the science of jurisprudence. But rules are not the ultimate end, the main thing — that main'thing is justice itself, the very right of the matter. The rules are only in aid of that main thing — the working tools whereby it is attained.

Section 1850, Revised Statutes 1909, reads: ‘ ‘ The court shall, in every stage of the action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party; and no judgments shall be reversed or affected by reason of such error or defect.”

Section 2082, Revised Statutes 1909, reads: “The Supreme Court, or courts of appeal, stall not not reverse the judgment of any court, unless it shall believe that error was committed by such court against the appellant or plaintiff in error, and materially affecting the merits of the action.”

In establishing a working theory to administer those statutes, it is stiffly held that if a plaintiff is allowed all his competent proof and makes no case on the facts on which liability can be predicated and is unsuccessful below, then error in his adversary’s instructions, or in the admission of evidence on the part of such adversary, cannot “materially affect the merits of the action,” or “the substantial rights of the adverse party.” In such case (as to an appealing plaintiff), at bottom there are no merits and no substantial. rights in the eye of the law. [Trainer v. Sphalerite Mining Co., 243 Mo. 359.]

At the threshold, then, lies the question: Did plaintiffs make a case for the jury? If that question be answered, no, then mere error in instructions and in the admission of evidence on behalf of defendant is afield and fills no office at all on appeal under the quoted statutes; for the result, despite the error, was right. If right, it abides. We will not undo what has been done, in order that some intermediate move in the (so called) “game” may be corrected only to get the same result again. If, yes, then error in the way the case was put to the jury at once takes on new color and becomes of substance.

II. Of the facts. Attending to them, defendant’s right of way at Hoberg is one hundred feet in width and its track lies in the center. There is a bit of obscurity on the point but from what follows we take it the track runs southeast and northwest. Plaintiffs own a tract abutting on said right of way. Its description with other substantial testimony indicates that defendant’s road ran to the northwest. Plaintiff’s mill stood broadside parallel to the right of way, fonr or five feet therefrom, and,, say, fifty-four feet from the track, and must have had the same relation to the cardinal points of the compass. This has some significance, taken with the way the wind sat the night of the fire. In the afternoon and evening of January 10, 1908, there was a high wind blowing from the northwest. Obviously the same direction of track and wind is a factor in determining the course locomotive sparks would take. It is more convenient, however, to refer to the mill and track as running east and west and witnesses now and then drop into that form of expression. So, it was very cold the afternoon and evening of the fire. All agree it was foul weather-damp, misty and threatening. Some say rain fell in that region in the afternoon. Some, that it snowed in the evening, at least, during the fire. The mill, a wooden structure of sixty-barrel capacity, was newly built, partly of old material. There was a main building of three stories, with additions of an engine room and a wareroom, each one story. The wareroom ran along the entire east end of the main mill. The engine room ran along its west end, hut lacked twelve feet' of being as near the track. The main mill was covered by a composition roof — the engine and ware-rooms, with galvanized iron. The mill was completed, except wheat bins and the wareroom, and carpenters were working on them. Windows were in and doors hung except one — a large door on the north side of the main mill, fronting the track and intended to shove to and fro on rollers. That door was fastened shut on occasion with eight-penny nails. At such times it was not nailed “solid,” but was secure. On warm days they took this door away. For a week before January 10 there had been no fire in the engine room, but the mill, theretofore grinding, was open for business, occupied by the proprietors plying their calling as millers, and by carpenters on that day. Heat was furnished at the time by a coal oil stove in a room called the “office,” when the engine was not running. On Jannary 10 that coal oil stove was running. Witnesses vary on the time the mill men quit work and left, closing it for the evening, but it was nigh five o’clock; its windows were fastened and doors locked, except the north door and that was nailed up as usual. As we grasp it, there was a rule made by- Groh against smoking in the mill, but, as he made the rule, he accommodatingly waived it in his own favor, smoking cigars and pipes in the office. This office was in the southeast corner of the main mill, next the wareroom. Groh testified that he turned down the oil stove before leaving the mill; that his habit was to see it out before he went away. Stored in the mill were some hundred bushels of wheat, 10,000 pounds of flour, 3000 pounds of feed, 190 bushels of corn, two barrels of oil and a barrel of oil waste, the latter in the northwest corner of the mill proper, and some clothes close by. All agree that, a young man named Owens discovered the fire and first gave the alarm. He puts himself at church about two miles from Hoberg and, according to his watch, left church at about a quarter to nine. He drove in a buggy the two miles to Hoberg and discovered the fire at about a quarter after nine, when some distance away. He then drove to the Creymeyer house where Groh was sleeping (a house about one-fourth of a mile from the mill), awakened him and others and then drove north of the mill. At first he saw the blaze coming around the southwest corner of the engine room. Afterwards, when on the north of the mill, he saw the fire in the northwest corner of the main building, both in the inside and on the outside, and the weather-boarding there was burnt through. When he saw the fire at the southwest corner of the engine room it was a blaze about the size of a small brush pile. There was other testimony that Owens gave the alarm at Creymeyer’s house at about a quarter to nine, instead of a quarter after. At any rate, it was so late that the Creymeyer household, including G-roh, were in bed at that time. After Grroh and the others there dressed and got to the mill, as said one-fourth of a mile away, they tried to get in at the office window on the south side, but it was too smoky. They next went to the engine room and tried to get in, but it was too smoky there. Afterwards they went round to the north and west and found the fixe along the north side of the mill, more of it to the west than to the east of the main door on the north, and as near as they could make out burning most fiercely in the northwest corner. The building collapsed within a half hour after they got there. Before that there was an explosion and it seems there was a stick of giant powder with a fuse and fulminating cap in the mill, left over from digging a well. . All agree that the nailed-up door on the north was then open. It was pushed back on the top, resting against a bench in a slanting position, but was not on fire. Along the west end of the main mill, up aways, about where the roof of the engine room was to be joined to the west wall, there was a space left in the weather-boarding* when the main mill was built. Presently, when the roof of the engine room was joined to this main wall, this space was not entirely closed, and, as we understand it, there was a strip of weather-boarding off there, about three inches in width, and things were in this fix on January 10th. The railroad track ran by the mill in a little cut and this missing strip of weatherboarding would be a trifle higher than the top of a locomotive smokestack. Locomotives had been daily passing and repassing while the mill was building and shavings and other combustible debris were scattered around, but before January 10th no fire.had caught from sparks. There was testimony that fire had caught from such engines in the grass and in a rail pile in the neighborhood at uncertain times prior to this fire, some at a less and some at a greater distance away than the mill stood from the track; bnt no one had ever seen an ember smoulder for three hours. All of such fires were observable within a short time after the passage of a locomotive. There was also testimony that at some uncertain time after the fire in the mill sparks now and then fell from passing locomotives as far as the mill basement. Plaintiff’s theory is that the fire started about six p. m. from sparks thrown by a locomotive heading west in the teeth of the wind and drawing a light passenger train of three or four cars. There is no testimony that this particular engine set any of the other mentioned fires. To the contrary, it had been in the shop, was overhauled there, and came into use in prime condition about two weeks before the fire. It is established by the proof, with no countervailing testimony, that the state of the weather (whether cold, hot, dry, damp or heavy) has a great deal to do with the life of sparks thrown from a locomotive; that when it is very cold or damp sparks do not live as long or fly as far as when it is warm or dry. Weather conditions existing at the times the other -fires started or sparks fell, testified to by witnesses, are not disclosed. There is testimony that all locomotive engines throw ■ some sparks. The plan in use on defendant’s locomotives to prevent the escape of coals of fire, as distinguished from sparks, is by means of a spark arrester. Such arrester is a composite device having a baffling sheet and a steel sheet or sieve with very small meshes, three thirty-seconds, of an inch in diameter. This appliance on this engine was in good order at the time. When the draft is on the fire box so there is a tendency to lift coals of fire, such coals first strike the baffling sheet and are there mechanically pounded and pulverized by attrition and beating into a less size than the small meshes in the sieve before they can escape by passing through it and out of the smokestack into the air. The station at Hoherg is six or seven hundred feet east of the mill. The train in question stopped at the station January 10th at about five forty-eight p. m., the usual time. There was some testimony it was on time. But plaintiffs’ testimony indicates it was a little late, say, five or ten minutes, making it about six o’clock when it passed the mill. If the train was on time, then on Owens’ testimony the fire was discovered over three hours after its passage. If a little late, as plaintiffs’ evidence shows (and we must assume it was on demurrer), then it was nearly three hours before the fire was discovered. There is no testimony contradicting Owens on the size of the fire at the time he first saw it, and there are no facts shown making it improbable, in the keen gale then blowing, that thereafter a fire, of the size seen by Owens, could not have reached the fury and volume shown by the other witnesses when (getting' out of bed, dressing and going on foot one-fourth of a mile) they got to the mill. "When working steam up grade there are more sparks thrown by a locomotive then when running down grade, and more sparks from an old fire in the fire box than from a green fire. It was usual in starting the train west from the station house at Hoherg to make a green fire by shoveling in fresh coal and the steam is worked to gather headway after the start. At the mill there would be a light pressure of steam. There is not a particle of testimony that the particular engine drawing this passenger train, leaving the Hoherg station at, or a little before, six p. m., on January 10th, threw any sparks. No witness saw it throw any, though they saw the train and engine, and the testimony is to the effect that in the nature of things it could throw off very few, if any, and those not amounting to much. Out of forty or fifty times one witness had seen it go by, he saw it throw sparks four or five times, hut whether before or after the fire is dark. Mr. Groli said at tie fire tliat somebody bad broken that door open (referring to the nailed np door on the north side). A witness said to him: “It has been'too long for a train to have set it.” To that fie replied: “Yes, there has been no train for over three hours.” He told another witness he did not know how the fire originated. Plaintiffs’ attorneys elicited from one of their own witnesses that there was talk at the fire to the effect it was of incendiary origin and that there had been trouble with reference to digging a well at the mill. A witness for plaintiffs, who went to the post office after supper to get mail brought in on the train, had a chance to see and saw no fire at the mill. Another, who lived not far from the mill and whose bedroom window faced the north side of the mill, saw no fire when he retired about an hour and three-quarters after the train had passed.-'

Defendant was allowed to show, over objection, that a stranger came to defendant’s section house from the direction of the mill that evening after the train passed and wanted work, said he would have to lie out, borrowed some matches to build a fire and returned in the direction of the mill. Defendant, over objection, at first was allowed to show that the mill was insured, that the insurance was paid after the fire, that the policy had a subrogation clause in favor of the company'if a fire was caused by á railroad, and that the insurance company was interesting itself in the prosecution of the suit. Later the court changed position and the same character of testimony was ruled out. • Plaintiffs got an instruction commanding the jury to disregard the matter of insurance. Defendant was permitted to show by experts, over objection, how far a spark from a locomotive under prevailing weather conditions could fly and live, and how far a spark would have to go to reach the mill, keeping in view the direction of the wind and the distance of the track, The details of all the aforesaid testimony may be omitted'. Nor we need not say on demurrer whether there was error in that behalf, since, as already held, if plaintiffs fail to make a case, such rulings could not be reversible error.

On-such record, we rule as follows:

(a) The action is brought under the statute (R. S. 1909, sec. 3151) enacted in 1887 (Laws 1887, p. 101). G-rounded in natural equity and held a constitutional exercise of the police power (Mathews v. Railroad, 121 Mo. l. c. 315), resting also on the maxim, “Every one should so use his own property as not to injure that of his neighbor” (Campbell v. Railroad, 121 Mo. l. c. 346), that statute with a single stroke cut away all necessity of pleading or proving negligence in order to fasten liability on a railway company for damages from fire escaping from its engines. It was a revolution in existing law, was remedial, and is to be liberally construed. It runs on the theory that such company, speeding its trains through the country " by steam power, in using so good a servant as fire when kept in bounds, but so hard a master when set free, was henceforth responsible for the ravages of a fire set out by its locomotives. It means that, regardless of fault, the one must pay the damages who caused loss by that particular kind of a fire. To prove the negligent escape of fire from a locomotive, here one instant and gone the next, and manned by unknown men, was an almost impossible task, and the law-maker took off that burden. So far as material, the statute reads: “Each railroad corporation owning or operating a railroad in this State shall be responsible in damages to every person and corporation whose property may be injured or destroyed by fire communicated directly or indirectly by locomotive engines in use upon the railroad owned or operated by such railroad corporation. . . .”

Observe, while negligence is no longer a factor, and plaintiff is relieved from the burden of charging or proving it, yet lie still carries a burden. He cannot recover by mere proof of a fire and tbe presence of locomotives on a railroad. He must still charge and prove that the fire was actually communicated to his property by one of defendant’s locomotives in use on its road. Failing in that, he is cast as a matter of law.

(b) On demurrer to the evidence, the right doctrine to go by is: Defendant’s testimony, where contradicted, is taken as false; plaintiff’s, whether contradicted or not, is taken as true; discrepancies, contradictions between witnesses or self contradictions by witness, together with the credibility of the witness and the weight due his testimony, are for the jury, not the court. So, plaintiff is entitled to the grace of having allowed in his favor every inference springing reasonably on the proof.

Not unmindful of those precepts, but applying them in full vigor, we are of opinion the facts disclosed were not sufficient to carry the case to the jury.

This, because:

(c) The facts have been set forth so fully that there is no call to restate them and little to comment on them.

(1) The evidence relied on to show the origin of the fire is strictly circumstantial — that is, the main fact, viz., the cause of the fire, stands to be proved by the proof of surrounding conditions and circumstances “whose existence.is a premise from which the existence of the principal fact may be concluded by the necessary laws of reasoning.” (Bl. L. Dict., under “Circumstantial Evidence.”) “The soundest test of the validity of that sort of evidence is, that no other theory but the hypothesis upon which the conclusion is based, can be formed.” [Per Hughes, J., in Musselwhite v. Receivers, 4 Hughes (U. S. Cir. Ct. Rep.) l. c. 169.] In circumstantial evidence the principal and ultimate fact is got at by way of argument and by method of demonstration in. the nature of reductio ad absurdum. [Will’s Cir. Ev., p. 17.] Therefore, in cases turning on circumstantial (or what is called by the civilians oblique and by the Scotch jurists argumentative) evidence, the proof should have a tendency to exclude any other reasonable conclusion than the principal fact. Says the author just quoted (p. 17): “The force .and effect of circumstantial evidence depend upon its incompatibility with, and incapability of, explanation or solution upon any other supposition than that of the truth of the fact which it is adduced to prove.”

(2) Testing the facts by the general principles announced we see no way out of it except to hold that plaintiffs did not show that defendant’s locomotive directly or indirectly communicated fire to their mill. There is not a particle of evidence tending to show that a spark, keeping in its whole course so alive and hot as to breed a fire when it lit, could fly or ever flew as far as such spark would have to carry in this instance and in a gale of as cold and damp a wind. There is no testimony tending to show that a fire would lurk and smoulder for the length of time this must have done, if it is to be credited to defendant’s locomotive. Common observation does not teach us that fires, catching in tinder or debris, hesitate so long. Usually in cases finding their way into courts for damages for setting out fires, they develop shortly after a locomotive has passed, and the significance of time has been a topic of judicial comment in those cases. The whole trend and thread of the proof point to the conclusion" that the fire originated inside the mill. Indeed, in damp conditions prevailing, it could not in reason have caught on the outside, therefore the spark must have got inside the mill. To account for a spark falling inside, a three-inch crevice in the weather-boarding on the west side is shown. Where it led to in the inside is not shown. Did it lead to the floor. to a sill or to the ground? Assuming it led into the main mill, then according to the physics of the matter, a spark (from a locomotive running to the northwest in the teeth of the gale) would have to travel nearly on a dead level for a great many more than fifty-four feet before it could reach that particular hole in the west wall, for we know the smokestack would have to he smartly to the west of the mill, before a wind from the northwest could carry the spark to that hole. That such spark would live in the cold and damp, reach that crevice and breed so late a fire inside of the mill rests necessarily in speculation, and has all the loose and inconclusive features earmarking guesswork and conjecture as distinguished from sound reasoning. Did tramps inadvertently or some enemy intentionally set the fire? Did mice gnaw matches in some coat pocket, or did the coal-oil stove explode because turned down low and not out? Or did the barrel of waste set fire to the mill by spontaneous combustion? Who knows ? Strange things might happen in that way, and whether they did or not would be conjecture pure and simple. But some of those strange things would be just as reasonable as to say that a spark from a locomotive (that was not seen to throw any) flew on a level for, say, seventy-five or one hundred feet and accurately hit a three-inch crevice in a wall; that it then was red hot, though the air was cold and damp; that it then fell on combustibles inside the mill and started a fire; and that such fire smouldered for three hours (a little more or less) before discovery by those situated so as to likely see it. That hypothesis is also conjecture pure and simple. No conclusion that such result was likely or reasonable could flow from sound reasoning of such premises. At very best one could only say, it was possible, it might be so. Shall we say the proof shows that defendant might have set the fire or might not, ergo, defendant must pay? On such theory, defendant would always have to pay, and the statutory duty of showing that defendant’s locomotive communicated the fire would he eliminated. We could not very well adjudicate on such a toss up and non sequitur as that. Speaking of cold weather as discouraging to long life in a spark of fire, who has not got up of a bitter morning to find his household fire frozen out? At such times one is — but no matter about that.

It is true that testimony is permitted in this character of eases to show the ability of locomotives to throw sparks to this, that or the other distance, and, when so thrown, to show they ignite combustible matter. But the value of that sort of testimony, in the nature of things, should be limited to similar conditions of wind and weather and surrounding circumstances. We know nothing of the state of the weather, or the direction of the wind, or the character of the combustible material (except grass) set on fire theretofore in that region by locomotive sparks. The proof fell short on that score. So, there is no testimony whatever that the engine in question threw any sparks on the evening of the 10th of January, 1908, likely to cause a fire. So, does not the fact that the door on the north was found pushed in, point to the probable presence of intruders in the mill after closing time?

If the jury had found for plaintiffs, it would have been the duty of the trial court to set the verdict aside as unsupported by proof. Under facts more persuasive than here, that result has been reached more than once. [Gibbs v. Railroad, 104 Mo. App. 276; Manning v. Railroad, 137 Mo. App. 631; Peck v. Railroad, 31 Mo. App. 123; Bank v. Railroad, 98 Mo. App. 330; Funk v. Railroad, 123 Mo. App. 169; Otis Co. v. Railroad, 112 Mo. 630-1.]

In the foregoing view, other questions are not reached and will he reserved.

The judgment was right. Let it be affirmed. It is so ordered.

All concur; Graves, P. J., in separate opinion.

CONCURRING- OPINION.

GRAVES, P. J.

I concur in this case for the reasons expressed by me in case of Trainer v. Sphalerite Mining Company just decided and reported in 243 Mo. 359, to which reference is hereby made.

       We are not at liberty to conclude that tbe wind blew this door in before tbe engine passed and a spark blew in tbe open doorway, for it was nailed securely and there is no testimony tending to show it could be blown in by tbe wind. But if we gave evidence to such surmise, then we confront tbe fact that tbe fire apparently did not spring up about tbe doorway and further past that a spark would have to fly and keep alive about as far as to enter tbe crevice in tbe weatherboarding'.


author: LAMM, J.

text:
    JOHN C. HUGHES et al., Appellants, v. WILLIAM WINKLEMAN and FIRST NATIONAL BANK of Boone, Iowa.
    Division One,
    May 31, 1912.
    MORTGAGE SALE: Redemption: Irregularities: Abandonment. Allegations of such irregularities in the foreclosure sale as rendered it voidable and invoking relief on gen.eral equitable principles, passed over in silence and not pressed in plaintiffs brief, will not be considered, for that silence is tantamount to an admission of a failure of proof and to an invitation to the court to put such issues out of view.
    -: -: After Foreclosure: At Common Law: Under Statute. At common law, whatever right to redemption existed prior to foreclosure of a mortgage, after foreclosure and sale there was no right to redemption as of course. The right to redeem as of course is purely a creature of statute in several States, and when a State has enacted such a statute it constitutes a rule of property in the State that enacted it, hut it has no extra territorial force.

      3.--: -: -: Iowa Contract. The absence of a statutory right of redemption under a decree of foreclosure in court leaves the common law in force in Missouri as to that kind of sale, which is that there is no right to redeem after foreclosure and sale.
    4. -: -: -: -: Right to Redeem Under Iowa Statute. The right of a mortgagor in a mortgage executed in Iowa to an Iowa mortgagee on Missouri land to redemption after foreclosure sale is not determined or affected by an Iowa statute creating the right to redeem within one year after foreclosure sale as of course, but (absent a statute) is determined by the common law in force in Missouri, which is the lex rei sitae, and the common law gives no right to redeem after a decree of foreclosure in court and sale. That Iowa statute has no extra-territorial force. It does not affect the right to redeem Missouri land sold upon foreclosure of the mortgage.
    5.--'-: -: -: -: Comity. Comity is courtesy. In jurisprudence it is a kind of courtesy which, subject to exceptions, is administered by fixed rules of law and rises to the dignity of a legal right. But comity must give way to the law of the forum where the latter as a rule of property in the State of the forum clashes with a rule of property in some other State, when the property is real estate. The title to real property can be acquired, past and lost only according to the lex rei sitae. The remedy to enforce the lien of a mortgage (wherever made) is determined by the law of the State in which the land lies.
    Appeal from Clark Circuit Court. — Ron. Charles D. Stewart, Judge.
    Affirmed.

      Felix T. Hughes and T. L. Montgomery for appellants.
    (1) The contract being a note payable in Iowa and the parties residing there and a mortgage securthe same on land in Missouri, the entire contract, including the right of the parties thereunder, is governed by the laws of Iowa at the time the contracts were made and entered into in said State — the law with which the parties were familiar and by which they are presumed to be governed. Thurston v. Rosenfield, 42 474; Ins. Co. v. Simmons, 52 Mo. App. 358; Bent-v. Whittemore, 19 N. J. Eq. 462; Hazelett v. Wood-150 Mo. 543; Bryan v. Bristed, 26 Mo. 423; Clem-v. Schmidt, 17 L. B. A. 1094. (2) This is not asking a Missouri court to administer justice according the forms and proceedings of the Iowa code hut to give effect to said code in so far as it affects appellant’s rights under the contract which brought with into this state the lex loci contractus. Tower Co. v. Hamilton, 179 Mo. 205; Cates v. Tibbetts, 100 Mo. App. 590; Bank v. Cooper, 85 Mo. App. 383; Long v. Long, 141 Mo. 373; Johnson v. Machine Co., 144 Mo. App. 441; Yennum v. Mertens, 119 Mo. App. 461; Dewolf v. Johnson, 10 Wheat. 367; Trust Co. v. Digest, 89 Fed. 123; Kuhn v. Morrison, 75 Fed. 81; Arnold v. Potter, 22 Iowa, 194; Ins. Co. v. Simmons, 52 Mo. App. 357; Hazlett v. Woodruff, 150 Mo. 539; Matheny v. Stewart, 108 Mo. 78. (3) The contract brings with it into this State and has impressed upon it the lex loci contractus and the appellants are not seeking a remedy not provided by the laws of this State, but are asking the enforcement of a right provided by the laws of Iowa which this court has declared in cases similar. Foundry v. Jackson, 128 Mo. 119; Berkley v. Tootle, 163 Mo. 584; Moore v. Lucas, 29 Pa. St. 260; County v. Mercantile Co., 84 Ky. 344; Thompson v. Ins. Co., 169 Mo. 12; Scudder v. Bank, 91 U. S. 406; Bank v. Cooper, 85 Mo. App. 383. (4) The force and effect of a deed made between parties domiciled in Indiana of land in Missouri, is solved by the laws of Indiana, and the words “grant, bargain, sell and convey” which by the laws of Missouri implied a covenant of seizure,'but the laws of Indiana did not so imply. Bethell v. Bethell, 54 Ind. 428; 1 Wharton on Conflict of Laws (3 Ed.), sec. 276;.Clenn v. Whistle, 23 Miss. 42. (5) The rule, that the lex rei sitae applies to real estate or real property contracts is applicable only so far as per tains, to the form or mode of execution of the deed conveying the same, and the mortgage in the ease at bar being a security for the note is governed by the place of performance of the contract in Iowa. 1 Wharton on Conflict of Laws (3 Ed.), secs. 276a, 276b, 510k; 1 Pingrev on Mortgages (Ed. 1893), secs. 789, 795, 796, art. 4; Lyon v. McQnevaine, 24 la. 9; Slacum v. Pomery, 6 Cranch (U. S.), 221; Duncan v. Helm, 22 La. Ann. 418; Trust Co. v. Burton, 74 Wis. 329; Lamar v. Micon, 114 U. S. 218; Watts v. Camors, 115 U. S. 353; Steam Co. v. Ins. Co., 129 U. S. 397; Dulman v. Cook, 14 N. J. Eq. 56; Jones on Mortgages (1 Ed.), sec. 661; Peet v. Peet, 229; Ill. 341. (6) The rules of private international law and comity between the states from the basis for recognizing .and enforcing the rights of the parties and is universally recognized by the various courts of the States and everywhere enforced. Trust Co. v. Camp, 71 Atl. (Conn.) 788; Craig v. Donovan, 63 Ind. 513 ; Jackson v. Green, 112 Ind. 341; Morley v. Honeman, 6 Ind. App. 240'. (7) The appellants are not estopped to claim their rights under the contract by reason of accepting the proceeds of sale as same is tendered back in the reply, there is no estoppel and respondent Winkleman has notice of record and in court proceedings under which he claims title that the contract was an Iowa contract, to be performed according to the laws of that State. Bromell v. Adams, 146 Mo. 701; Eldridge v. Haefer, 93 Pac. (Ore.) 246.

      Berkheimer & Dawson for respondents.
    (1) The lex situs governs in all matters pertaining to real property. 1 Wharton on the Conflict of Laws, secs. 273, 274, pp. 607, 608. It is a well affirmed general rule that the laws of a sister State which either give or deny the power to contract, have no extraterritorial force or effect, where the particular contract involved relates to the conveyance or incumbrance of lands situated in another state or jurisdiction. Cochran v. Benton, 126 Ind. 58. Such conveyances or encumbrances are considered as being governecl by tbe situs of. tbe realty, and all questions relating to tbe validity thereof are to be determined according to that law and not according to tbe law of place of the contract or of tbe domicile of tbe contracting parties. Jones on Mortgages, sec. 823; 6 Tbomp. Corp., sec. 7721; Nathan v. Lee, 43 -L. B. A. 824. An action to foreclose a mortgage mnst be brongbt in tbe jurisdiction of tbe situs of tbe realty and tbe action to redeem said realty from tbe sale of foreclosure mnst also be brongbt in tbe jurisdiction tbe situs realty. Allen v. Allen, 30 Pac. 213; Wheeler v. Walker, 64 Ala. 560; Miller v. Shotwell, 38 La. Ann. 891- Tbe right- of redemption from legal sale exists only by statute. Little v. People, 43 Ill. 188; Conway v. John, 23 Pac. 170; Gosoont v.- Gloe, 76 N. W. 424. Tbe right to redeem from such sale extends only to cases coming within tbe statute. White v. Bates, 15 S-, W. 651; Owen v. Kilpatrick, 96 Ala. 421. Tbe law in force at the time of the sale governs. Moor v. Seaton, 31 Ind. 1; Boss v. Boss, 1291 Mass. 243. Where a deed is executed and tbe parties reside in one State and tbe land is situate in another, lex situs governs. Minor on Conflict of Laws, p. 37; Mantón v. Seiberling, 107 Iowa, 534; Story on Conflict of Laws (8 Ed.), sec. 426. Tbe law of tbe lex situs controls as to tbe questions relating to tbe right and title to realty. Richardson v. De Giverville, 107 Mo. 422; Story on Con flict of Laws (8 Ed.), sec. 428-, p. 451; Brine v. Ins. Co., 96 IT. S. 635 ; 27 Cyc. 1801. Tbe rights of tbe parties are merged in tbe judgment and tbe same is final when not appealed from. A final judgment means one which can be foreclosed by execution, one that bears interest. R. S. 1909, sec. 2090; State ex rel. v. Klein, 140 Mo. 502; State ex rel. v. Nast, 209 Mo. 708. A void sale may be ratified by tbe landowner taking down and receipting for the surplus money. Proctor v. Nance, 220 Mo. 104; Hector v. Mann, 225 Mo. 228. (2) Tbe validity of a mortgage of real estate, and its construetion and effect are to be determined by tbe law of tlie State where tbe mortgaged property is situate, although tbe mortgage itself is executed and tbe parties reside in another State. Dawson v. Hayden, 67 Ill. 52; Holt v. Knowlton, 86 Me. 456'; Griffin v. Griffin, 18 N. J. Eq. 104; Dow v. Railroad, 20 Fed. 260¡; Beach on Modern.Law of Contracts, sec. 599', p. 720; State v. Clark, 178 Mo. 319';- Depas v. Mayo, 11 Mo. 319; Baum v. Birchall, 30 Am. St. 735; Klink v. Prive, 6 Am. St. 268; Ivey v. Lalland, 42 Miss. 444 ; 2 Parsons on Contracts, 571; Richardson v. DeGiverville, 107 Mo. 422; Keith v. Keith, 97 Mo. 228 ; Story on. Conflict of Laws, secs. 428 and 463; Rhue v. Buck, 124 Mo. 183; Goddard v. Sawyer, 91 Mass. 78; Fessenden v. Taft, N. H. 39 ; Miller v. Shot-well, 38 La. Ann. 890; Kelly Davis, 28 La. Ann. 773; Cochran v. Benton, 126 Ind. 158. (3) The right to redeem is purely statutory. There is no right to redeem lands sold under execuupon judgments either of foreclosure or otherwise in.the absence of special statute. 20- Am. & Eng. Ency. Law (1 Ed.), p. 634; Nicholas v. Tingstand, 10 N. D. Smith v. Anders, 21 ALa. 782'; Wimfheimer v. Ins. 56 N. J. Eq. 585.
   LAMM, J.

Equity. Plaintiffs’ ancestor, Amanda T. Hughes, sued in the Clark Circuit Court to set aside a judicial sale following the foreclosure of a mortgage on, say, 1300 acres of land in Clark county, Missouri, and to redeem. Cast below, she appealed. Pending appeal she dies, leaving plaintiffs as her only heirs. On suggestion of her death here the cause is-revived in their names. They enter their appearance and prosecute this appeal.

In November, 1904, Amanda T. Hughes (with two of the present plaintiffs) executed a note to defendant bank in the rise of $8500, due in a year and drawing seven per cent interest, securing it by a mortgage in common form on the land in question (then subject to encumbrances) on condition that the conveyance became void if the note were paid, having also a provision for foreclosure on default. Default was made in 1907 suit was brought by defendant bank in Clark Circuit Court to foreclose and for judgment the overdue note. To that suit she entered her ■voluntary appearance. Such proceedings were had that in June of that year a decree went foreclosing her equity of redemption, adjudging recovery on the note the sum of $9499.08 and awarding execution. Execution issued and a sale was made in the summer of 1907. Defendant Winkleman, being the best and last bidder, the land was knocked down to him at that pubvendue and outcry under the sheriff’s hammer for $10,505, and he presently received a sheriff’s deed. Thereafter in December, 1907, the present suit was brought.

The bill narrates the foregoing facts and then alleges that defendant bank and the plaintiff, Amanda T. Hughes, were at all times citizens and residents of Iowa; that the note and mortgage were Iowa contracts and are to be construed under its laws; that under those laws Amanda T. Hughes was entitled to redeem from a sale under a decree foreclosing a mortgage at any time within one year. Predicating a right of redemption on that state of facts, the bill next goes on to complain of irregularities in the sheriff’s sale. One is said to be that the land was offered in the lump and knocked down on a lump bid for an inadequate consideration of one-half its real worth. Another is said to be that Winkleman combined with other bidders to chill and depress the bidding, whereby the price was beaten down to the injury of the mortgagor. Another is said to be that the sale was void because advertised at the “courthouse door” in Kahoka and no particular door was noticed, although there were four outside doors to the courthouse, one on each side. It was next alleged that Winkleman knew and had notice (by the terms of tlie note and mortgage) of the laws of Iowa under which the contract was made and of the fact that the mortgage was not a Missouri but an Iowa contract and that the laws of that State permitted redemption in one year. Such, in substance, is the bill.

Defendant bank answered by general denial. It seems to have no interest in the subject-matter and why it was made a party is dark.

Winkleman answered admitting the execution of the note and mortgage, the judgment of foreclosure, the sheriff’s sale thereunder on execution, and that he bought thereat, paid his bid and got a sheriff’s deed under which he claims an absolute title. He specifically denies averments charging that the mortgage was governed by Iowa law,' or that he knew it was an Iowa contract, or that the right of redemption provided by that law governed the sale of Missouri land under a Missouri judgment of foreclosure and judicial- sale, or that the price was inadequate, or that there was any agreement among bidders to chill the bidding, or that the sheriff’s notice of sale was irregular and void in particulars alleged. He admits the sale was a lump sale on a lump bid, but avers (and proves) it was made in that way at the request of the mortgagor and of those representing her at the sale. There is next a plea of estoppel in that there was a surplus at the sale which Mrs. Hughes took down and receipted for to the sheriff.

At the trial a faint attempt was made to show grounds of equitable relief because of inadequacy of consideration coupled with irregularities in the sheriff’s sale of the sort alleged in the bill. But there was no proof of substance on any such score.

Mrs. Hughes was a citizen of Iowa, but at the time she executed the note, and mortgage she was visiting in Minnesota and the mortgage shows it was executed in that State. There is nothing to show that Winldeman (we infer from the record, a citizen of Missouri). knew she was a citizen of Iowa or knew what the laws of Iowa were, as alleged in the bill. Neither the mortgage, the note, nor the record of the foreclosure proceedings disclosed any such information. The mortgage does show that the mortgagee, the First National Bank of Boone, was a citizen of Iowa.

Iowa statutes were introduced, reading:

“Sec. 4045. The debtor may redeem real property at any time within one year from the day of sale and will, in the meantime, he entitled to the possession thereof; and for the first six months thereafter such right of redemption is exclusive; but no party who has taken an appeal from the superior or district court, or stayed execution on the judgment, shall be entitled to redeem.

“Sec. 4289. When a mortgage or deed of trust is foreclosed, the court shall render judgment for the entire amount found to be due, and must direct the mortgaged property, or so much thereof as is necessary, to be sold to satisfy the same, with interest and costs. A special execution shall issue accordingly, and the sale thereunder shall be subject to redemption as in cases of sale under general execution.”

The allegation in Winkleman’s answer that the sale created a surplus and that Mrs. Hughes took down that surplus was sustained by the proof.

I. The issues on appeal. We may with profit fetch a small compass on the issues. It will be observed that the hill is framed on two theories — one a redemption as of course under the statutes of Iowa; the other, such irregularities in the sale as made it voidable and invoked relief on general equitable principles. Attending to the latter theory, it is passed sub silentio and is not pressed in the brief of plaintiffs’ counsel. That silence when brought to hook is tantamount in a forum of reason to an admission of a failure of proof (which was so); and to an invitation to this court to put such issue out of view (which we do.) We note in passing a novel feature, viz.: Though plaintiffs held the laboring oar to show error on appeal, yet defendants’ counsel, acting on the notion, maybe, that extreme caution makes a safe proposition safer, and laboring under the glow of the old maxim: Abundans cautela non nocet, have elaborately briefed such abandoned points — possibly as a memorandum for use on some rainy day in some other case, certainly not in this; for, when we know it, we deal with the quick and not with the dead — with bones of contention, not with boneless contentions.

Plaintiffs stand or fall here on these propositions: (1) The mortgage was an Iowa contract. (2) Under Iowa law the right to redeem from a foreclosure sale was open for one year as of course. (3) Under the doctrine of comity that law and right must be read into the mortgage, the judgment of foreclosure, the sale and sheriff’s deed; and, so reading it into and saddling it on the transaction, it must be enforced in this State. We shall say what we have to say in considering those related propositions under an omnibus head, viz.:

II. Should the decree be disturbed? My brethren. are of one mind with me in answering that question, no. This, because:

Counsel on neither side have been able to find a case deciding the precise point presented here. Neither have we. The question being apparently new, in such fix we proceed, absent controlling authority, guided by general legal principles, the analogies of the law, parity of reasoning, and in line with public policy and common sense.

The following propositions may he accepted as announcing sound and pertinent doctrine.

(a) At common law, whatever right to redemption existed prior to foreclosure, after decree of foreclosure and sale there was no right of redemption as of course. [Parker v. Dacres, 130 U. S. 43; White v. Smith, 174 Mo. l. c. 199 et seq.] In Missouri a right to redemption exists where the sale is made under a deed of trust in the nature of a mortgage hy the trustee or some one representing the trustee in accordance with the terms of the instrument and without a foreclosure in court — this, under named conditions, [R. S. 1909, sec. 2829 et seq.] But that statute does not help plaintiffs. To the contrary, the preceding section provides for a foreclosure of the equity of redemption in court and a sale under execution, as here. Now, the right to redemption as of course is purely a creature of statute in the several states (Littler v. The People ex rel. Hargadine, 43 Ill. 188); and, to use the strong language of the Supreme Court of the United States, when a State has enacted such statute it “constitutes a rule of property in the State that enacts it.” [Parker v. Dacres, supra, l. c. 48, and cases cited.] It follows that the right to redemption as of course under a foreclosure sale is a rule of property in the State of Iowa. It has no extra-territorial force, hut dies at the State boundary, as the trees about Troy, under the mandate of the gods, grew no higher than the walls. So, the right of redemption under sales hy trustees in deeds of trust is a rule of property in Missouri under certain conditions precedent. Hence, the absence of a right of redemption as of course from a sale under a decree of foreclosure in court leaves the common law in force in Missouri as to that kind of foreclosure — this, under the maxim, Expressio unius, etc. Now, the common law, as seen, denies such right, wherefore the rule of property in this State is to deny the right of redemption as of course under the facts of this record. That rule of property is much in evidence and is to he sharply reckoned with on the question of comity presently up for exposition.

(b) Of comity.

At very root, comity is courtesy. In jurisprudence, however, comity is a kind of courtesy which, subject to exceptions, is administered by fixed rules of law and rises to the dignity of a legal right, as over against mere politeness in social intercourse. Courtesy must give way to the law of the forum, where the latter-on a rule of property in the State of the forum clashes with a rule of property in some other State, when the property is real property — immovables, as in the case at bar. Speaking to the question, Story [Conf. of Laws (8 Ed.), sec. 424] says: “And here the general principle of the common law is, that the laws of the place where such property is situate,- exclusively govern in respect to the rights of the parties, the modes of transfer, .and the solemnities which should accompany them. The title therefore to real property can be acquired, passed, and lost [the italics are ours] only according to the lex rei sitae. . . . Sec. 428: ‘ ‘ The consent of the tribunals, acting- under the common law, both in England and America, is in a practical sense absolutely uniform on the same subject. All the authorities in both countries, so far as they go, recognize the principle in its fullest import, that real estate, or immovable property, is exclusively subject to the laws of the government within whose territory it is situate. . . . Sec. 448: It may be affirmed without hestitation that, independent of any contract express on-implied, no estate can be acquired by operation of law in any other manner, or to any other extent, or by any other means, than those prescribed by the lex rei sitae.”

The general doctrine thus announced by Judge Story is unqualifiedly subscribed to in this jurisdiction. [State v. Clark, 178 Mo. 20; Richardson v. DeGiverville, 107 Mo. l. c. 433; Keith v. Keith, 97 Mo. l. c. 228.] And, on reason, applies to the facts in judgment.

Mortgages and foreclosures of them come within the scope and intendment of the foregoing rules of law. [1 Jones on Mortgages (6 Ed.), sec. 661.] “The remedy.” says that author, “.against the mortgagor personally may be pursued wherever the debtor may be, and therefore suit may be. brought against him in a state other than that in which the mortgaged premises are; but the lien upon the land can be enforced only in the State where the land is situated. It is a well-settled principle that title to real property must be acquired agreeably to the law of the place where it is situated. This principle applies to . mortgages as well as to absolute conveyances; and of course the remedy to enforce the lien must be sought where the property is. The validity of a mortgage must therefore be determined by the law of the State where the mortgaged land is, wherever the deed may have been executed or the mortgage debt made payable.”

Assuming it a rule of real property in Missouri that there is no right of redemption as of course from a foreclosure on a decree, as held in paragraph “a,” then, under the general principles formulated in this paragraph, how could we consistently hold that a Missouri rule of property, whereby title is lost or acquired, should give way to a contrary Iowa rule of property, when, as here, the real estate, the foreclosure, the execution, the sale, one and all are in Missouri and the sheriff’s deed came into being and passed title by virtue of Missouri law? Shall we rule that an owner of land in this State acquires it under a Missouri rule of property and loses it under an Iowa rule of property? If so, wherefore? Must we look to our own laws in settling our own titles .and also to the laws of forty-eight other States ? That would be a hard saying, much murmured against. To so rule would be to say that a citizen of Iowa has a right of redemption under our law denied to a citizen of Missouri, merely because of the accidental factor that the mortgage in one instance was made in Iowa and in the other in Missouri. Such a holding would, without any compensating benefit, introduce confusion and uncertainty in our land titles by unsettling our rules of property. Miserable, indeed, would be our property conditions if we left the simple and safe rules of the common law to run after a will o ’the wisp of speculative refinements said by counsel to spring from comity. All our titles would be drawn within the hazard of such new doctrine, and fortunately even comity calls for no ruling having such mischief hid in its bowels.

Again, we will not so write the law as to discriminate against our own citizens, “Justice must not be sacrificed to courtesy.” [Bryan v. Brisbin, 26 Mo. l. c. 425; Thurston v. Rosenfield, 42 Mo. 474.] In dealing with non-residents, they must be content with the constitutional safeguards of equality before our law — a benign and venerable doctrine, well vouched for: “Ye shall have one manner of law, as well for the stranger, as for one of your own country.” [Lev. xxiv:22.]

(c) We are cited to many cases relating to transitory as distinguished from local actions, to the law of the place of the contract as distinguished from the law of the place of performance, to cases relating to movables, usury, limitations and to still others on covenants that are personal as distinguished from those that run with the land, to the right of priorities between foreign creditors on assignments, to cases dealing with the mere verbal interpretation of deeds made in one State and relating to real estate in another, in which courts have made, and properly made, nice distinctions in upholding the law of the place of the contract as between their own'citizens, or as to one who seeks their courts for relief. It is not deemed necessary to discuss those cases, or to point out, a,s might be done, wherein they may be differentiated on principle from the case at bar. None of them, when well looked to, are in point. Moreover, in one view of it, the right to redemption affects the remedy and, like questions relating to the admissibility of evidence, depends upon the law of the place where the case is brought and the property is situate. [Ruhe v. Buck, 124 Mo. l. c. 183, and cases cited.]

The case breaks before reaching (hence without following out) all the ramifications in arguments and briefs. There are questions not vital that we reserve; for instance, estoppel, whether notice to Winkleman of the laws of Iowa and of the fact that the mortgage was an Iowa contract was essential to plaintiffs’ right of action.

Let the decree he affirmed. It is so ordered.

All concur.