author: WILLIAMS, C.

text:
    THE STATE v. HARRIS H. HORNER, Appellant.
    Division Two,
    November 30, 1915.
    1. MANSLAUGHTER: By Automobile Driver: Sufficient Evidence. Testimony that defendant was driving his automobile at a speed of fifteen to twenty miles an hour, at an intersection of two streets; that the view between him and the deceased pedestrian was unobstructed; that when deceased was ten or fifteen feet out in the street, after having left the sidewalk at the street intersection, and was walking in a straight direc- ' tion, he was struck by the automobile and dragged twenty-five feet or more; that no.warning or signal was heard; that deceased was apparently oblivious of the approach of the automobile until it was upon him; that going six miles an hour, as defendant testified, it could have been stopped in three or four feet, and that when defendant first saw deceased he was within three feet of him, and instead of stopping his car he swerved it in an effort to avoid hitting him, ,is sufficient evidence to support a verdict of manslaughter in the fourth degree based upon culpable negligence.
    2. -:-: Culpable Negligence: Definition. Aninstruc-^ tion defining “culpable negligence” as the failure to exercise “the highest degree of care which a very prudent and ordinarily skillful driver of an automobile would have used under the same or similar circumstances,” and authorizing a conviction if the jury found that the death of the pedestrian at a street intersection resulted from the failure of defendant to exercise such “highest degree of care,” is erroneous.
    3. -: -: Definition in Civil Code. The statute (Laws 1911, pp. 330-331) authorizing a recovery of damages in a civil -action for a failure to exercise “the highest degree of care,” has reference to civil actions only, and in no sense is to be considered a part of the criminal code.
    4. -: -: Definition in Criminal Action. Culpable negligence, as used in the statute (Sec. 4468, R. S. 1909) making the killing of a human being by the culpable negligence of another manslaughter in the fourth degree, is the omission to do something which a reasonable, prudent and honest man would do, or the doing of something which such a man would not do, under all the circumstances surrounding each particular case.
    Appeal from the St. Louis City Circuit Court. — Hon. Thomas G. Henning, Judge.
    Reversed and remanded.
    . , John- 4, Gernez for appellant.
    (1) The evidence upon the part of the State was inadequate to support the allegations of the information and defendant’s requested instruction at the close of the State’s case should have been granted. • (2) The ■ definition of “culpable negligence” given in the instructions is erroneous and vitiates all the instructions. Wharton'on Homicide, sec. 445; State v. Emery, 78 Mo. 77; Shearman & Redfield on Negligence, sec. 7; Scott v. Crums, 2 S. C. 537.

      Jolm T. Barlter, Attorney-General, and Lee B. Ewing, Assistant Attorney-General, for the State.
    (1) The evidence was amply sufficient to sustain the verdict. State v. Watson, 216 Mo. 420; State v. Emery, 78 Mo. 77; Laws 1911, sec. 8, pp. 326-327; Karle v. Railroad, 55 Mo. 476; Stotler v. Railroad, 200 Mo. 107; Beford v. Johnson, 82 Ind. 426; Fredt v. Wheeler, 70 Minn. 161; Div. 528, 8 Am. Rep. 354. (2) Does the instruction correctly declare the law? State' v. Landgraf, 95 Mo. 103; 'State v. Campbell, 82 Conn. 671; Kelley’s Crim. Law & Prac., sec. 506; 3 Green-leaf’s Evidence, see. 129; Reg. v. Longbottom, 3 Co. C. C. 1. c. 440; Laws 1911, sub. 9, sec. 12, p. 330 ; Laws 1911, sec. 8, p. 326; Hays v. Hogan, 180 Mo. App. 242 ; 21 Cyc. 766; Anderson v. State, 27 Tex. App. 177.
   WILLIAMS, C.

The ' information in this case charges defendant with manslaughter in the fourth degree under section 4468, Revised Statutes 1909, based upon the alleged culpable negligence of defendant in operating an automobile over the public streets of the city of St. Louis in such a manner as to run down and kill one Russell K. Cooper. Upon a trial had in the circuit court of the city of St. Louis, defendant was convicted and his punishment assessed at a fine of five hundred dollars. The evidence upon the part of the State tended to show that the deatb of the deceased occurred about 3:30 p. m., July 31, 1913, at the intersection of Fourth Street and Washington Avenue. At the hour of the accident there was very little travel on the street at that point. A west-bound street car had stopped just east of the intersection of these two streets for the purpose of taking on or letting off passengers. The deceased left the sidewalk, at the northeast corner of the street intersection and was walking rapidly, in a southwesterly direction, toward the southwest corner of the intersection. When he was some ten or fifteen feet out in the street, the automobile, which struck him, approached from the south, coming “fast.” One witness estimated the speed at from fifteen to twenty miles an hour.' The witnesses for the State testified that they did not hear any signal or warning given by the defendant who was driving the automobile. About this time, the street car started across the street but only moved about six feet into the street before it came to a stop. It is clearly inferable from the State’s evidence that the view between deceased and defendant as defendant approached near the intersection was unobstructed. Deceased was at the center of the street where the street car tracks crossed when he was struck by the automobile. ■ The defendant in driving the automobile undertook to swerve the machine to the left to avoid striking the deceased, but the right hand lamp struck the deceased, knocking him down under the automobile, and he died in a short time thereafter. Deceased was apparently oblivious of the approach of the automobile until the same was upon him. Deceased’s body was found lying about twenty-five feet from the place where the automobile struck him and the automobile was stopped about thirty-five feet from the point of collision.

The defendant testified in his own behalf, stating that he approached the intersection of the two streets running at a rate of- about six miles per hour and the street appearing to be clear he sounded his horn, and started to cross the street on the right-hand side, and, as he approached the center of the intersection, deceased came running around the front of the street car which had started up. "When defendant first saw deceased he was within three feet of the defendant’s machine. Defendant yelled at him and swerved the machine to the left in an attempt to avoid striking him. That the car was a left-hand drive and that he did not know he had struck the deceased until he had crossed the street and looked back. He thereupon hastened to the side of the wounded man and helped place him in a conveyance so that he could be taken to a hospital. There was evidence tending to show that this automobile, going six miles per hour, could be stopped in a distance of three or four feet.

An appeal was duly taken by the defendant, and he now urges as grounds for reversal, 1st, the insufficiency of the evidence, and, 2nd, the error of the court in giving certain instructions.

I. Appellant insists that the evidence was insufficient to support the verdict. We are unable to agree with this contention. Under former rulmgs of this court, we are or the opinion that the evidence upon the part of the State was clearly sufficient to justify the submission of the question of defendant’s guilt to the jury. [State v. Watson, 216 Mo. 420, l. c. 435; State v. Emery, 78 Mo. 77.]

II. The instructions given by the court to the jury defined the term “culpable negligence” as the failure to exercise “the highest degree of care which a very prudent and ordinary skilful driver of an automobile would have used under the same or similar circumstances” and authorized a conviction if they found that the death resulted from the failure of defendant to use said “highest degree of care.”

This was clearly erroneous. It is true that the Act of 1911 (Laws 1911, pp. 330-331) makes the “owner, operator or person in control of an automobile” respond in civil damages for any injury resulting from the failure to use “the highest degree of care” as by said act defined, but said act has reference only to civil actions, and is in no sense to be considered a part of the criminal code, and, therefore, has no part in fixing the standard of care required in measuring criminal responsibility. This prosecution is based upon section 4468 of our criminal code (Sec. 4468, R. S. 1909), and it is to that act we must look for the standard of care, the violation of which is to fix the. criminal liability. Said section reads:

“Every other killing of a human being by the . . . culpable negligence of another, which would be manslaughter at the common law, and which is not excusable or justifiable, or is not declared in this chapter to be manslaughter in some other degree, shall be deemed manslaughter in the fourth degree.”

The term “culpable negligence” as used in the above statute has been by this court defined as follows: would not do under all the circumstances surrounding each particular case.” [State v. Emery, 78 Mo. 77, l. c. 80.]

“Culpable negligence is the omission to do something which a reasonable, prudent and honest man would do, or the doing something which such a man

To the same effect are the following authorities:

Wharton on Homicide (3 Ed.), sec. 445 ; 3 Greenleaf on Evidence (16 Ed.), par. 129; Kelley’s Crim. Law & Practice (3 Ed.), sec. 511, page 454.

'It therefore follows that, because of the erroneous instructions given, the judgment must be reversed and the cause remanded. It is so ordered.

Roy, G., concurs.

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

All the judges concur.


source: Caselaw Access Project

author: FARIS, P. J.

license: Public Domain

text:
    JANE R. KEYES et al. v. GEORGE N. MUNROE, Appellant.
    Division Two,
    November 30, 1915.
    1. EVIDENCE: Unprobated Will: No Objection. An unprobated will is not competent evidence of title; but if it is offered and admitted without objection, and there are facts in the record which amount to more than an inference that it had been probated, the trial court will not on appeal be convicted of error in admitting it.
    2. PARTIES: Deceased Devisees: Ejectment: Judgment for Whole. Where plaintiffs claim title through a will which devised one-third of the land in fee to his widow, who has died since the suit began, a judgment which gives the whole of the land to the descendants of testator’s deceased son and only other devisee, is erroneous, unless there is a showing that said son was the only child of said widow and that she died the - owner of said one-third and intestate as to him, or if testate that she devised the land to him or his descendants.'
    3. EJECTMENT: Identity of Names. From identity- of name prima-facie identity of person is to be presumed; but this primafacie case of identity is liable to be shaken by the slightest proof of facts which produce a doubt of identity.
    4. -: -: Reyes for Keyes: Deed Contradicted by Index. If the only proof to contradict the record of a deed made in 1859 showing E. N. Reyes to be the grantee is the record index showing E. N. Keyes to be the grantee, a judgment in ejectment for the heirs of E. N. Keyes cannot stand. The deed in such case would be the best evidence. But proof aliunde may be made that the deed was erroneously recorded, or that the name upon the record is Keyes and not Reyes, and that the apparent discrepancy arises from the age in the record or from blind writing; and if such proof of a substantial character is made, then the index is competent as a circumstance.
    Appeal from Reynolds Circuit Court. — Hon. E. M. D earing, Judge.
    Reversed and remanded.

      R. I. January for appellant.
    (1) A will must be probated to pass title to land. Snuffer v. Howerton, 124 Mo. 637; Smith v. Estes, 72 Mo. 310. (2) A party plaintiff cannot impeach his own evidence. 1 Greenleaf on Ev., see. 442. (3) It is not permissible to introduce parol or intrinsic evidence to vary or contradict a judicial or deed record. Sutton v. Cole, 155 Mo. 206; Long v. Long, 141 Mo. 371; 1 Devlin on Deeds, sec. 193; 1 Greenleaf on Evidence, sec. 442. (4) The tax deed is prima-facie evidence of title in the purchaser. Sec. 11501, R. S. 1909. (5) The law does not require that the claimant under the tax deed, shall establish title against the whole world, but only between parties to the suit. Machine Works v. Bowers, 200 Mo. 236; Graton v. Land Co., 189 Mo. 322; Gage v. Cantwell, 191 Mo. 698. (6) The index to deed records is no part of the record, and E. N. Keyes had no deed of record; so there was no constructive notice that E. N. Keyes ever had any title to the land. Devlin on Deeds, see. 695; Shepherd v. Burkhalter, 13 Ga. 443, 58 Am. Dec. 523; Bishop v. Schneider, 46 Mo. 472.

      C. M.- Buford, Arthur T. Brewster and Sam M. Brewster for respondents.
    (1) Upon the whole record the judgment" is for the right party. (2) The index to deed records is authorized and required by law, and may be resorted to for the purpose of aiding in the correct construction of a deed record. Sec. 10384, R. S. 1909; Smith v. Lindsey, 89 Mo. 76. (3) The court inspected the rec: ord and made a finding on a question of fact, and such, when supported with any evidence, is conclusive upon the parties. Morrison v. Bomer, 195 Mo. 535; Chilton v. Nickey, 169 S. W. 979. (4) The index being an ancient writing and being supported by competent evidence and other facts and circumstances is entitled to greater weight than the unsupported erroneous record of the deed. (5) It is immaterial whether the will of Ell N. Keyes was probated or not, for if probated title would be in the present plaintiffs through the will, and if unprobated they would still have the title by inheritance. (6) Title, like any other fact, may be established by circumstantial evidence, and it is not necessary that the circumstances should remove all reasonable doubt; a preponderance of the evidence is sufficient. Brewer v. Cochran, 99 S. W. (Tex.) 1033.
   FARIS, P. J.

This is an_ action to determine interest to certain lands situate in Reynolds county. Plaintiffs had judgment vesting title to the whole of the lands in fee in them, and defendant appeals.' Pending this appeal defendant departed this life, but since, pursuant to stipulation, Eva W. Munroe, defendant’s sole devisee, has been substituted as appellant and the cause revived in her name; it is not deemed necessary to destroy the identity of the case by a change in the style thereof, and this explanation stands in lieu of such change.

The lands involved are the northeast quarter and the east half of the northwest quarter and the northwest quarter of the northwest quarter of section 13 in township 33 north, of range 3 west, and situated as stated, in Reynolds county.

Both the petition and the answer are conventional and in the latter defendant joins with plaintiffs in praying the court to ascertain and determine the title as between the parties litigant.

The facts shown in evidence upon the trial are few and meagre and this meagreness has caused much difficulty in reaching a conclusion in the ease. The lands were entered by one John Dorsey from the United States. On the 15th of June, 1859, Dorsey conveyed to one Ei. N. Keyes or to E. N. Beyes, of Cleveland, Ohio. Since the recorded copy of the deed shows the name as last above set out, about this question of whether the name of Dorsey’s grantee is Keyes or Reyes a large part of the controversy turns.

Upon the.trial plaintiffs offered a purported copy of the will of Ell. N. Keyes, who resided in his lifetime at Cleveland, Ohio; by the term of which will said Keyes gave his widow Elizabeth L. Keyes (who after-wards intermarried with one Churchill, and died pending this suit) one-third of all of his real property in fee and to his son Frank E. Keyes the residue thereof. Plaintiffs herein are the widow of said Frank E. Keyes, who died in 1899, and his two daughters, constituting all of his heirs. Mrs. Jane Rodgers Keyes, who is a plaintiff herein, and as stated, is the widow of Frank E. Keyes, deceased, testified orally in the case and in substance stated that E. N. Keyes (who plaintiffs contend is the grantee in the conveyance from Dorsey) died in Cleveland, Ohio, about 1870 or 1871; that he had resided there continuously from 1861; but that he was residing in 1859. (the date of the conveyance from Dorsey), at Keyesville, Vermont; that search had been made for deeds or other muniments of title to the land in controversy both among the papers of E. N. Keyes and among the papers of Mrs. Churchill’s estate, but that no such papers whatever in any wise having reference to this land were found. The only fact stated by this witness connecting plaintiffs’ ancestor in identity with the grantee in the Dorsey deed, was the fact (elicited without objection) that Prank E. Keyes had come to some indefinite part of Missouri about 1895 to look for, or look after, lands which had belonged to his father. This witness stated, however, that the name of Reynolds county did not refresh her memory or suggest to her that the land in controversy was located therein, and that no taxes had ever been paid by her husband or any other of the family upon this land. In short the oral testimony is (and this though not objected to, was utterly incompetent) that the witness’s husband came to some portion of Missouri in 1895 to look for, or look’after, some lands, which had, as he averred, belonged to his father. Clearly, the weight of such testimony, even if it were competent, is negligible.

In passing it may be said that plaintiffs offered, over the objections and exceptions of defendant, the index to the deed records of Reynolds county, wherein it appears that entry No. 56, bearing date June 15, 1859, was a deed wherein John Dorsey was grantor and E. N. Keyes was grantee and that the lands conveyed were those in controversy here. This in substance is the whole of plaintiffs’ proof.

Defendant offered a sheriff’s deed dated May 24, 1882, purporting to convey under a sheriff’s sale for taxes all of the interest of John Dorsey and E. N. Keyes to the land in controversy to R. I. January. To the introduction of this sheriff’s deed plaintiffs made objection that it passed no title, for the reason that at the time of the tax suit, the judgment and sale said E. N. Keyes had been dead for more than ten years. Other conveyances were offered from R. I. January down to defendant herein, but which are not pertinent to the' points up for discussion. The land was conceded to be wild, timbered, uncultivated land, and no point is made as to any statute of limitations.

No declarations of law were requested or given on either side.

The points urged upon us for reversal are in brief: (a) that the judgment is against, the evidence and against'the law under the evidence and for the wrong party; (b) that the court erred in admitting incompetent evidence offered by plaintiffs, and (c) that specifically, the court erred in admitting the index to the deed records to vary the solemn record of the deed as found in the land records of Reynolds county.

OPINION.

Defendant contends that the will of E. N. Keyes offered in evidence does not show that it had ever been probated, and that for this reason it was not admissible in evidence and could not pass title to the land in dispute. There can be no two diverse views as to the correctness ordinarily of this contention. But the record discloses that no objection whatever was made to this document when it was offered. If objection to it had been lodged with the learned trial court he would no doubt, as in duty bound (Snuffer v. Howerton, 124 Mo. 637), have sustained such objection. But we do not think we should sustain an objection to an instrument which is so vital a part of plaintiffs’ case, when such objection is made for the first time in this court. While the record before us does not show probate thereof, there is more than an inference that the will was in fact probated. Proof of probate may have been at hand, and a timely objection below might have resulted in putting the proof of the will into this record. It does appear that the Ohio probate court acted under and pursuant to its provisions, a thing we may safely assume it would not have done under an unproven will. We disallow this contention, so far as it is sought thereby to convict the court nisi of reversible error.

Touching this same will it is, however, urged that Mrs. Elizabeth K. Churchill (or her heirs, or devisees) is a proper party plaintiff. Mrs. Churchill was origiBally a party; but she was dismissed hence upon the trial, for the reason, as counsel for plaintiffs advise us in their brief, that she had died pending the action, and counsel farther urge that this fact of her demise was well understood by all parties as well as by the trial court, and that the action was tried by all concerned upon the theory that she was dead. We think this explanation is fairly well sustained by clear inferences which appear upon the record.

It does appear, however, that there was devised to Mrs. Churchill (who, as stated above, was the widow of said E. N. Keyes, and after his death married one Churchill) by the will which plaintiffs offered, one-third of the land in controversy herein in fee. She, or, if in fact she be dead, her heirs or devisees, own that one-third yet, and plaintiffs, so far as the record discloses, have no title or interest in it. The judgment of the court in so far at least as it gives the whole of this land to plaintiffs is erroneous.

The contention of plaintiffs that since they are all of the heirs of Mrs. Elizabeth Churchill it makes no difference whether she was a party or not, or whether the will was probated or not, might be well taken if it were borne out by the record; but it is not so borne out. The record shows that Frank E. Keyes, the father and former husband respectively of plaintiffs, was the only child of E. N. Keyes, but it does not show that he was the child of Mrs. Churchill, except by an ambiguous inference, or that he was her only child, or whether she died testate or intestate, or whether she had or had not horn of her marriage to-Churchill issue, which either inherited her share or a part of her share in this land, or served as a conduit to- pass title or a curtesy estate to her last husband. Upon the record before us the judgment of the court to this extent is erroneous.

Points on both sides of this controversy.are dark and undeveloped. Their development would serve we think to promote justice in this case, which for aught that is shown by the record may lie with either side. For example, it may be that the deed which appears of record in the apparent name of E. N. Reyes, may be in truth to E. N. Keyes, and the seeming error a result of blind writing by the copyist, or of age in the record; if this be so, then an opportunity to put in proof upon this point should in deference to justice be afforded. There is no such competent proof in this record.

It may well be that more certain and definite proof of the identity of plaintiffs’ .ancestor with that E. N. Reyes or E. N. Keyes who bought this land from Dorsey in 1859 may be obtainable upon another trial. We are mindful that from identity of name prima-facie- identity of person is to be presumed. [Geer v. Lumber Co., 134 Mo. l. c. 95; Mosely v. Reily, 126 Mo. l. c. 129.] But this prima-facie case so shown is liable to be much shaken by the very slightest proof of facts which produce a doubt of identity. A well-known writer seems to state the rule on this point very acceptably and clearly: names identify a single individual.” [2 Chamberlayne, Mod. Law of Ev., sec. 1191.]

“The probative force of the inference of identity from similarity of names is greatly diminished in force even to the vanishing point by introducing into the consideration of the matter facts inconsistent with the truth of the administrative assumption that similar

As the case must he retried it5may he well to say that it is clear that nanght else appearing the index of the land records can not suffice to overturn the solemn recitals of a recorded deed. Nothing being shown upon one side but the deed and upon the other the index each contradicting the other, it is plain that the reason and logic of the case lie with the record of the deed itself as being the best evidence of the contents of the original. So much for the contrasted weight of the respective entries. If (as was not the case' here) proof alivmde be made that the deed was erroneously recorded, or that the name is upon the record Keyes and not Reyes, and that the apparent' discrepancy arises from the age of the instrument or from blind writing, then with some such substantial proof, the index would be competent as a circumstance. Standing alone as here, the index is insufficient to vary the letter of the deed record, and is therefore incompetent, and in the absence of other proof, or other attack upon the apparent reading of the deed, the court should have sustained the objection made to it.

For the errors noted, we think this case ought to be reversed and remanded for a new trial so that, if counsel are so advised, they may put in proof to illuminate points and corners of it, which are now so dark that the justice of it is fairly debatable. Let it be reversed and remanded for a new trial.

Walker, J., concurs; Revelle, J., not sitting.


author: GRAVES, P. J.

text:
    THEODORE C. LEONARD v. SOLOMON C. SHALE et al.
    Division One,
    December 2, 1915.
    1. CONVEYANCE: Wrongful Delivery: Unauthorized Opening of Letter. The owner of land resided in Cincinnati, and his agent and brother resided in Missouri and was sick at the house of a friend and while there some kind of a trade was made for the land. The -agent wrote the owner to make out a deed for the land, naming his host’s son as grantee, inclose it in an envelope addressed to the agent, and inclose that envelope in another addressed to the agent’s host. That was done, and when the letter was received by the host he opened both envelopes and immediately placed the deed of record without the knowledge or consent of either the agent or owner. Held, that the possession and record of the deed was wrongful, but that does not determine the rights of a subsequent innocent purchaser for value, even though the deed itself has been cancelled for non-delivery.
    2. -: -: Good Faith of Subsequent Purchaser. A purchaser for a valuable consideration from the apparent record owner in possession of the land, with no knowledge that the deed to the apparent owner had been wrongfully obtained by him and placed of record without the owner’s knowledge or consent, and with no such knowledge as would put him on inquiry, is not chargeable with bad faith. Nor does the fact that he had heard, before he made a loan on the land, that such apparent record owner had gotten a farm at a bargain, impugn his good faith in making the loan.
    3. -: -: Estoppel: Depositary: Violated Confidence: Innocent Third Parties. No title passes to the grantee who wrongfully obtains or steals a fully executed deed and places it of record; but the grantor, as to subsequent grantees, may be estopped to dispute the validity of a conveyance by said grantee, by the conduct of the grantor in placing a fully executed deed in the hands of the father of such grantee, as his depositary, or by the conduct of the grantor after he knew such deed had been delivered and placed of record. So that where the owner’s agent, residing at the residence of the grantee’s father, wrote the owner to make out a fully executed deed, inclose it in an envelope addressed to the agent and inclose that in another envelope addressed to the father, and that was done, and when the letter came both envelopes were opened by the father and the deed immediately placed of record without the knowledge or consent of the grantor or his agent, and the agent learned the facts soon after the deed was placed of record ' and the grantee and father went into possession and while in possession borrowed $1500 from defendant, who knew nothing of the fraudulent facts, and secured the loan by a deed of trust on the land, and the plaintiff (the Original grantor) knew for six months before defendant made the loan and obtained the deed of trust that the undelivered deed had been recorded, the plaintiff is estopped to dispute the validity of the deed of trust, because (1) he is chargeable with the knowledge of his agent who was in chai'ge of the land at the time the deed was obtained, and (2) because he made the grantee’s father the depositary of the deed and if he violated his confidence innocent third parties should not suffer, and (3) because he did not take prompt action, after he knew the deed had been recorded, to divest the grantee of his apparent record title.
    4. -: -: -: Prompt Action. The real owner of land cannot knowingly permit the title to stand upon the record in the name of another, and then defeat a mortgage placed thereon by such apparent owner, if the mortgagee acts in good faith and without knowledge of the true facts in taking the lien. A delay of six months by the grantor after he discovers that his fully executed deed had surreptitiously and wrongfully, without actual delivery, been placed of record, to bring proper proceedings to have the title divested out of the grantee, will estop him from enforcing his title as against a mortgagee who, without any knowledge of the fraud, in good faith in the meantime loans money to the apparent record owner.
    Appeal from Buchanan Circuit Court. — Eon. William D. Bush, Judge.
    Reversed (with directions).

      C. W. Meyer for appellants.
    (1) The aid of a court of equity can not be invoked when a party has slept on his rights and influenced others to act in the confident belief that he has relinquished his claims. Pomeroy’s Equity Jurisprudence (2 Ed.), secs. 418, 419:; Landrum v. Bank, 63 Mo. 48; Schradski v. Albright, 93 Mo. 48; Hughes v. McAlister, 15 Mo. 296. (2) "Where a grantor has been guilty of negligence in having made, signed and acknowledged an instrument and in placing it where the grantee might, if so disposed, readily obtain wrongful possession of it and so be enabled to deceive, and. defraud innocent third persons, he will be estopped from setting up his title as against a bonafide purchaser for value under such deed. Jones on Mortgages (3 Ed.), sec. 604; Martindale on Conveyancing (2 Ed.), p. 189; Tisher v. Beckwith, 30 Wis. 55; Gage v. Gage, 36 Mich. 229. (3) If the real owner of property allows it to stand recorded in the name of another by a title such as to pass the fee, he puts it in the power of that other to create a valid mortgage upon it. Snodgrass v. Emery, 66 Mo. App. 462; Lawrence v. Inv. Co., 51 Kan. 222; 27 Cyc. 1036 ; Hunter v. Buckner, 29 La. Ann. 604. (4) The deed of trust attacked by respondent in this case is good for the following reasons, in addition to the points urged above: (a) Where one is in possession of land and has a deed of record, the possession will be referred to his deed unless there are facts known to the purchaser indicating a different possessory right. Wash-burn on Real Property (4 Ed.), star p. 35. (b) A mortgagee of realty or the beneficiary in a deed of trust on realty is considered a purchaser thereof. Steadman v. Hayes, 80 Mo. 319; 27 Cyc. 1183. (c) A mortgagee will generally be justified in relying on an apparently legal title in his mortgagor, as shown by the records. 27 Cyc. 1036, 1183-5; State v. Mathews, 44 Kan. 596. (d) There is no evidence whatever that Shale, or anyone acting for him, knew of the claim of Leonard on the land when the deed of trust in suit was executed, and when the money was advanced on the strength of this security, (e) If a mortgage be made without consideration and is afterward negotiated, the price paid by the assignee becomes the consideration of the mortgage and makes it a valid security. Jones on Mortgages, sec. 788; Hosmer v. Campbell, 98 111. 572; Hanrion v. Hanrion, 84 Pac. 381; Verity v. Sternberger, 172 N. Y. 633. (f) "Where one of two innocent parties must suffer, he who placed it within the power of the third party to commit the fraud, or he whose conduct caused the damage, must bear the loss. 2 Herman on Estoppel, secs. 766, 767; 16 Oyc. 773.

      John 8. Boyer and Vinton Pike for respondent.
    (1) The issue in this case is eminently one of fact. The question of appellant’s good faith is all that the case involves. The ease is this: Respondent owned this land and at request of his brother, Dr. Leonard, sent a deed with Reed Huff’s name written in it as a grantee in an envelope addressed to A. B. Huff, Reed’s father, inclosing another envelope sealed and containing the deed and addressed to Dr. Leonard. A. B. Huff, who had consented to receive the package for Dr. Leonard, opened both envelopes, and without the consent or knowledge of Dr. Leonard or respondent took the deed to the recorder’s office and filed it for record. In a suit by respondent against Reed Huff, the deed was set aside and record cancelled because it had been obtained and recorded as above, (a) The deed never having been delivered, no title passed, and Shale acquired no right under the deed of trust unless respondent has estopped himself. Shale’s position is that-he is an innocent purchaser in good faith. The onus is on him. Stephenson v. Kilpatrick, 166 Mo. 268-9. (b) “There must be an intent to convey and the delivery of the deed for the purpose of vesting a present title in the grantee, and a deed deliverd without the consent of the grantor is of no more effect to pass title than if it were a.forgery.” Felix v. Patrick, 145 U. S. 329; Weddecombe v. Childers, 124 U. S. 405. “A deed which has been surreptitiously and fraudulently obtained from the grantor without his knowledge or consent does not, even as against a subsequent purchaser without notice, transfer his title.” Dlevlin on Deeds, secs. 267, 322. “The deed ‘in the eye’ of the law as it lay in escrow was a mere scroll. Its wrongful and untimely delivery by the custodian must not be allowed to be of any efficacy.” Bales v. Roberts, 189 Mo. 69. (c) The deed was not delivered in fact or form to Reed Huff. A. B. Huff was the conduit through whom the paper was to pass to respondent’s agent, Dr. Leonard. A. B. Huff was in no sense the agent of Reed Huff to accept it, nor of respondent to deliver it. He was a thief and nothing else. R. S. 1909, see. 4542. (2) To maintain estoppel in pais fraud is essential ‘ ‘ either in the intention of the party estopped, or in the effect of the evidence, which he attempts to put up.” Bales v. Perry, 51 Mo. 453; Hequembourg v. Edwards, 155 Mo. 522; Hill v. Epley, 31 Pa. St. 334. And “it necessarily follows, that the party who claims the benefit of an estoppel, must not only have been free from fraud in the transaction, but must have acted with good faith and reasonable diligence, otherwise no equity will arise in his favor.” 2 Pom. Eq. Jur., par. 813. (3) The court must defer much in this case to the action of the trial court. The appellant was charged with participating in Huff’s fraud; and was before the court in person and testified in his own behalf. His evidence ought not to satisfy this court; and much weaker must it have seemed to the trial judge, where his manner was observed. Short v. Taylor, 137 Mo. 525. Besides this case is of the kind where the degree of proof must be clear and unequivocal and the circumstances free from suspicion. Hennessy v. Murdock, 137 N. Y. 317; Chambers v. Mc-Creeny, 106 Fed. 367; Willett v. Fistler, 18 Wall. 91; Gardner v. Weston, 18 Iowa, 533; Moore v. Smith, 103 Mich. 387; Snyder v. Harris, 48 Atl. 331; Stafford v. Brown, 104 N. Y; S. 801; Conlon v. Mission, 79 N. Y. S. 406; Parker v. Parker, 63 Atl. 1094; Meier v. Blume, 80 Mo. 184; -.Hoppen v. Doty, 25 Wis. 591; Parker v. Foy, 43 Miss. 266; Eck v. Hatcher, 58 Mo. 241; Trester v. Pike, 62 N. W. 211. (4) Shale had the burden and has not shown that he was innocent by clear and satisfactory proof, (a) He admits that there was a “little talk” around the Exchange about the Huffs and Leonard and this land and he caught “up more or less of it.” The talk must have been about stealing the deed, which Shale calls getting the land “at a bargain.” It gave the Huffs a bad name about the Exchange, because they got and recorded the deed surreptitiously, not that they had overreached Leonard in a deal. Shale says the Huffs and Leonard were well known there. There would be no occasion for “talk,” but for the way the deed was obtained. A. B. Huff obtained the deed and Reed Huff was discharged from ■ the post office and both were leaving the place. The talk could not have been that their good luck was taking them away, when their notoriously bad repute was driving them away, (b) A. B. Huff says Shale and Reed Huff were acquainted while Shale says he only knew him by sight. If he was trying to help the Huffs cover this land he would wish his attitude toward them to appear to be that of a stranger; and his denial of an acquaintance with them ought to be construed as an admission from his standpoint that acquaintance with them spelled conspiracy to defraud Leonard. The court evidently believed they were acquainted as A. B. Huff states, and that Shale’s . denial was untrue, and made to evade the effect of intimacy with them. Machinatur ad circumveniendum. (c) Shale always has been friendly with the Huffs. He did not call Reed Huff as a witness, because his testimony would not be favorable to his cause, either as directly impeaching Shale or indirectly injuring it in the ordeal of cross-examination. In any view the inference is adverse. Ellis v. Gulf, 54 Fed. 481; Kirby v. Talmadge, 160 U. S. 383. Reed Huff lived at Garnett, Kansas, and A. B. Huff at Olathe. The one was as accessible as the other, and failure to produce Reed “creates the' presumption that the testimony, if produced, would be ■ unfavorable.” Graves v. United States, 150 U. S. 121. Sbale says he advised with his attorney and they “thought it would be a good idea to have his (A. B.’s) evidence. He was the party we made the loan to, and he knew the matter.” The only matter about which his evidence could be desired was the fraud on Leonard. A. B. Huff says he negotiated the trade for the land, but did not tell what the trade was; and agrees “the land was never paid for” and that the deed was set aside — as he would state it — not as fraudulent, but “the decision was not clear.” (d) Shale says he never talked with the Huffs before or after the pretended loan. When they defaulted, he made no effort to collect from Huff; never asked him to pay. Says he was never asked to prosecute Huff, but his attorney contradicts him as to that. When asked pointedly if he was not depending on collecting the money by means of the Leonard land and did not expect to collect of Huff, he answered, “Well, I don’t know about that,” and that he would have tried to collect the interest “if this had not been decided against us,” and when Huff lost his case, he “knew then he would not pay.” By the “us” he unconsciously associated himself intimately with the Huffs. His mind was hinged upon the original purpose to extract the money from the land and not from the Huffs. Throughout Shale acted like a man who had incurred no loss, (e) In a deposition Shale had stated that if he had known Huff was to pay only $2000 for the land he would not have loaned $1500 on it. He felt that admission made against him, and on the trial said he thought Huff was getting the land “for a bargain.” How did he learn this? “Well, sir, I could not say more than you would hear people talk, and they would say they got it cheap, or something like that.” Did he hear Huff was trying to steal it from Leonard? “Well, no; I can not say that I did.” If an honest man in Shale’s situation were asked the question would he have hesitated in his answer, and left the implication that he may have heard it? Nunn v. Brandon, 24 Ont. 375. (f) The reputation of the Huffs was generally bad about the Exchange and was talked about in connection with their dealing with Leonard. This was what Shale heard, and he is presumed to have known all an inquiry about it would have led to. Jones v. Smith, 1 Hare, 55; Willis v. Yalette, 61 Ky. 186. Shale says the story about the Exchange was something that, “will cause a little talk around and you will catch up more or less of it.” It was such as people “take interest in and discuss.” The occasion of talk-in fact was the theft of the deed. Shale shuffled, evaded and must have heard more than he would admit, (g) It was intimated that the money borrowed was used in improving the Leonard farms, “used it mostly on the places there.” If the money was wanted for a purpose and was not used for that purpose, it was some evidence no money was supplied, and what they did on both places did not exceed in value $75. If Reed were a witness he could not have accounted for any money of Shale, (h) The record does not show when Leonard v. Huff was begun — whether before or after the Wilson-Shale mortgage — nor does it appear that said suit was not promptly instituted and prosecuted. Laches must be pleaded and there is nothing here tending to show that the plaintiff did not diligently pursue his remedy. Plaintiff did. not put Huff in a position where he could commit a fraud upon another. Huff got into that position by a criminal act and the rule appealed to by appellant does not apply. 16 Cyc. 773. See especially: Walsh v. Hunt, 120 Cal. 46; Bank v. Clark, 51 Iowa, 264; Holmes v. Trumper, 22 Mich. 432. (i) There is no evidence to justify the belief that any money passed permanently from Shale to Huff. Shale did not trace any money to Pluff, but significantly omitted to do so. He said he had in court checks which he would put in evidence but did not. The indorsements thereon might have led to a demonstration that the funds did not pass from him except as a pretense.
   GRAVES, P. J.

Action to ascertain and determine title. Judgment below was for the plaintiff, and defendant has appealed. The facts relied upon by plaintiff are concisely stated in the petition thus:

“That the defendants claim to have some title, estate or interest in said lands; that the plaintiff is informed, believes and charges that the defendants’ claim aforesaid is based upon a certain deed of trust made by Reid H. Huff to the defendant, Charles W. Meyer, as trustee, to secure the payment of a note of said Huff to one William H. Wilson of the Philippine Islands in the amount of fifteen hundred dollars, payable three years after date, with interest at five per cent, which said deed of trust bears date November 3, 1909, was acknowledged before competent authority on said date and recorded on the same date in the recorder’s office of Buchanan county, in book 391, at pages 66 and 67; that the said Reid H. Pluff, who made said deed, had no title, estate or interest in said lands, but had fraudulently, wickedly and surreptitiously obtained the semblance thereof by purloining from the custody of plaintiff’s agent, a deed which the plaintiff had made, signed and acknowledged and entrusted to said agent for delivery to said Reid H. Huff, in the event that said Reid H. Huff should make a contemplated purchase of said lands; that said Huff did not purchase said lands or any part thereof or interest therein, and said deed has been, in a certain action brought by plaintiff against said Huff, declared to be null and void, by reason of its non-delivery to him, and the record thereof has been set aside and can-celled; that said action and the decree therein "was lately had and made in this court, in which action this plaintiff was the plaintiff, and the said Beid H. Huff was defendant, and wherein the said Beid H. Huff was duly served with process and appeared in said action.
“That the said note made by Beid H. Huff to said Wilson, and pretended to be secured by said deed of trust to the defendant Meyer, was not made and delivered upon any consideration whatever from said Wilson, but the name of said Wilson was used as a cover for a transaction between said Beid H. Huff and the defendant Shale, and that while said note was made to said Wilson, it was intended for said Shale, and was by Wilson in form assigned and transferred to said Shale, who is now the owner and holder thereof.”

The answer admits that Shale is the owner and holder of the deed of trust and note mentioned in the answer, and avers that the same was duly and properly executed. The answer also sets up the plea that Shale was a purchaser for value of said note, and without notice of any alleged defects in the proceedings. In terse terms, that he, Shale, was an innocent purchaser, for value. There was also in the answer facts pleaded tending to show an estoppel.

The pertinent facts are such as can be stated shortly. Plaintiff was not a resident of Missouri, but had a brother who lived in St. Joseph. Plaintiff resided at Cincinnati, Ohio. He owned this land in Buchanan County, which was under the immediate control of his brother, Dr. Leonard. In January, 1909, Dr. Leonard was sick at the residence of A. B. Huff in South St. Joseph. A. B. Huff was the father of Beid Huff, who figures conspicuously in this case.' During the time Dr. Leonard was at the residence of A. B. Huff some kind of a trade for this land and other lands belonging to Leonard’s sisters was made. Dr. Leonard wrote the plaintiff to make ont a deed to the forty acres of land in question and inclose it in an envelope addressed on the outside-to him (Dr. J. W. Leonard), and to inclose this in another envelope and address it to A. B. Huff, South St. Joseph, Mo., and mail it to A. B. Huff in that way. This was done. When Huff received the letter thus addressed, he evidently opened the letter to Dr. Leonard and took out the deed, and it was immediately placed of record without the knowledge or consent of either Dr. Leonard or the plaintiff. This deed conveyed the land to Reid H. Huff, and the Huffs took possession of the land. The deed was acknowledged in Ohio January 27, 1909, and recorded in St. Joseph January 29, 1909, or just two days later. In October, 1909, Reid H. Huff began to negotiate a loan on this land. The first arrangement was to get a loan of $1500 from William' H. Wilson, then in the Philippine Islands, through his brother, Sidney C. Wilson, an attorney at St. Joseph and an agent of William H. Wilson. This was to be a five per cent loan. Papers were accordingly drawn up, but Sidney O. Wilson found that he could get a better rate of interest for his brother, and the defendant Shale was induced to take thfe loan on this land. Accordingly the note was assigned to Shale and he put up the $1500, which was received by Reid H. Huff, less the expenses of making the loan. There is no question of Shale being out $1500. The plaintiff learned in April, 1909, that this deed had been placed of record, and Dr. Leonard, his agent, knew that it had been placed of record, about the date of its record. Shale says he had no knowledge of any trouble about the title until Leonard sued Reid H. Huff to cancel the deed. This was early in 1910. His suit was successful, and shortly thereafter the present suit was brought. Details will be left to the opinion. This outlines the case.

Upon this record it is quite clear that the possession and record of the deed from plaintiff to Reid H. Huff was wrongful. It appears to have ^eei1 so i*1 a suit for its cancellation, in which judgment cancelling it was entered. We start this case with that concession. A. B. Huff should have delivered plaintiff’s deed to Dr. J. W. Leonard, and not to Reid H. Huff, as was evidently done. But this concession does not of itself justify the judgment nisi in the instant case.

The real questions in this case are (1) the good faith of Shale, and (2)' the question of estoppel urged as against the plaintiff. We have rea<^- recolU thoroughly and there is no substantial evidence against the good faith of Shale. Nor is there substantial evidence 'tending to show that he had any knowledge of what happened between the Leonards and the Huffs. The fact that he had heard discussed at times that the Huffs had gotten a farm at a bargain, is not such as would impugn his good faith in making this loan. Nor is there any thing in this record that would cast upon Shale the duty to make inquiry. The record title was in Reid H. Huff. The Huffs were in possession, and nothing on the surface to call for an inquiry by Shale. We therefore dismiss this branch of the case by saying that there is nothing in the record which would impugn the good faith of Shale in the transaction, and that in good faith he parted with $1500 on the apparent title of Reid H. Huff to this land.

Conceding then that the possession of the deed from Leonard to Huff was wrongful, and that the recording thereof occurred by reason of the wrongful possession, how stands the case?

It is undisputed that the Huffs went into possession and remained in possession for a year. They were in P°ssession w^en the deed of trust was made. ^ .g ■¿pat the plaintiff’s agent in charge of this land knew this fact. It is undisputed that plaintiff’s agent, in charge of this land for him, knew of the record of this deed, at or about the time it was placed of record, and plaintiff admits that he knew of it six months before the defendant Shale bought the $1500 note and deed of trust. With these patent and undisputed facts, should the plaintiff be protected by a decree such as was entered nisi? We think not. Respondent’s very able counsel, in the brief say:

“The deed never having been delivered, no title passed, and Shale acquired no right under the deed of trust unless respondent has eslopped himself. Shale’s position is that he is an innocent purchaser in good faith. The onus is on him.”

We think counsel have well expressed the law of the ease. Defendant’s evidence clearly shows good faith, and its force and effect is not impaired to any serious extent by a close and vigorous cross-examination, upon which the plaintiff relies. That Shale was in good faith when he took this note and deed of trust, we have no doubt under the record before us. That there were no circumstances which called for a special inquiry as to title by Shale is equally clear. No facts appear which would lead a reasonably prudent man to suspect that the reco’rd title was not the true title, and therefore there was no legal demand upon Shale to look further, or inquire further as to the title. The onus of showing good faith has been borne by the defendant Shale. The above leaves only the question of estoppel. This can be approached from two angles: (1) the conduct of the plaintiff in placing a fully executed deed in the hands of the father of Reid H. Huff and (2) the conduct of the plaintiff after he knew that such deed had in fact been delivered and placed of record. For this case we may assume, as contended by plaintiff, that a deed stolen from a grantor, before delivery, passes no title to the grantee therein named, nor to one acquiring a deed from him, but there are exceptions to such a rule. Thus the Wisconsin court speaks in Tisher v. Beckwith, 30 Wis. l. c. 58:

“The only question which can ever arise to defeat the title of the supposed grantor in such cases, is whether he was guilty of any negligence in having made, signed and acknowledged the instrument, and in suffering it to be kept or deposited in some place where he knew the party named as grantee, might if so disposed, readily and without trouble obtain such wrongful possession of it and so be enabled to deceive and defraud innocent third persons. It might possibly be that a case of that kind could be presented where the negligence of the supposed grantor in this respect was so great, and his inattention and carelessness to the rights of others so marked, that the law would on that account estop him from setting up his title as against a bona-fide purchaser for value under such deed. [See Everts v. Agnes, 6 Wis. 453.] ....
“The same case (Burson v. Huntington, 21 Mich. 415) also makes a distinction between a note or other instrument so obtained and one deposited in escrow and afterwards fraudulently delivered by the depositors, holding that in the latter case the maker would • be bound as against an innocent holder for value, on the ground of the trust or confidence reposed by him in the depositary, and upon the principle that, when one of two innocent persons must suffer by the acts of a third, he who has enabled such third person to occasion the loss must sustain it. Upon the same question also of negligence, see Wait v. Pomeroy, 20 Mich. 425, 4 Am. R. 395.”

Both these doctrines apply to this ease. The agent of plaintiff knew the relationship between A. B. Huff and Reid H. Huff (that of father and son and member of the same household) when he directed the deed to be mailed to said Huff. This knowledge should be attributed to plaintiff, because his agent was the party in charge of the land (and its sale) which was the subject of the trade and deed. Then in addition to that the plaintiff made the elder Huff his depositary, and if he violated his confidence, innocent third parties should not suffer. Upon the ground of negligence, as well as the latter ground, the plaintiff should be estopped to assert his title as against Shale.

Not only should the plaintiff be estopped by reason of his own negligence in placing an acknowledged deed in a place where its delivery might be obtained wrongfully, and by reason of the further fact that A. B. Huff was the depositary of his own selection, and thereby his agent, but his conduct after the delivery and record of the deed should bar his action by way of estoppel. In 27 Cyc. 1036 the rule is thus stated:

“If the real owner of property allows it to stand recorded in the name of another, by a title such as to pass the fee, he puts it in the power of that other to create a valid mortgage upon it. And the lien of a mortgage will prevail against the right of any third person to impeach and divest the mortgagor’s title as having been obtained by fraud or false representations, where the mortgagee relied on the clear record title of his mortgagor and had no notice actual or constructive of the rights of the stranger.”

Plaintiff knew that his deed was of record long before this deed of trust was taken by defendant Shale. He knew that the Huffs had gone into possession. The deed conveyed the fee to Reid H. Huff. Plaintiff should have taken prompt action toward divesting Huff of his apparent title. Such action would have saved the defendant Shale. One can not knowingly permit the title to his lands to stand in the name of another, and then defeat liens placed thereon by such person, if the party who takes the lien, acts in good faith and without knowledge of the true facts. "We have no hesitancy in holding that the conduct of plaintiff: after he discovered that his deed had been delivered and placed of record, is such as to estop him from enforcing his title as against Shale. Where one of two innocent parties must suffer the one which has by his acts placed or left it within the power of a wrongdoer to do the wrong, must be the loser, under well established doctrines of equity. Plaintiff falls within this rule. A court of conscience can not permit Shale to lose his lien under the admitted facts of this case.

The judgment nisi is for the wrong party, and such judgment is reversed, with directions to enter up a judgment which will in all respects fully protect the deed of trust and interests of Shale. It is so ordered.

All concur.


author: WOODSON, J.

text:
    KINGSHIGHWAY SUPPLY COMPANY et al. v. BANNER IRON WORKS, ERNEST C. F. KOKEN, Trustee, and CITY OF ST. LOUIS, Appellants.
    Division One,
    December 2, 1915.
    1. CITIES: Vacating Alley. Subject to the constitutional inhibition against taking or damaging private property for a public use, the city of St. Louis, under its charter, has the power and authority by ordinance to vacate an alley.
    2. -: -: Abutting Property.. Property abutting on a public alley is property abutting along its sides, and not property that lies along the rear end of an alley extending into but not through a block.
    3. -:--: Right to Injunction: No Abutting Property. The owners of land which lies only along the rear end of a public alley extending into a block, not being abutting owners, will, if tbe alley is vacated, sustain only sucb damages as are common to the public generally, and are not therefore entitled to a decree nullifying an ordinance vacating the alley.
    4. -: -: Abutting Property: Special Taxes. Held, arguendo, that, in the absence of an express statute to the contrary, only such property as fronts along the side lines of a street or alley is chargeable with the costs of a public improvement therein, and land whose side line lies along the rear end of a blind alley is not so chargeable.
    Appeal from St. Louis City Circuit Court. — Hon. G. C. Allen, Judge.
    Reversed and remanded (tuith directions). ■

      Schnurmacher & Rassieur for appellants.
    (1) When the ordinance was passed, vacating the alley in question, the city of St. Louis, by the charter then in force, was vested with full power “to establish, open, vacate, alter, widen, extend, pave or otherwise improve, and sprinkle, all streets, avenues, sidewalks, alleys, wharves and public grounds and squares and provide for the payment of costs and expenses thereof, in the manner in this charter provided.” Former Charter of St. Louis, art. Z, sec. 26, par. 2; Realty & Inv. Co. v. Deere & Co., 208 Mo. 66; Knapp-Stout & Co. v. St. Louis, 153 Mo. 560; Knapp-Stout & Co. v. St. Louis, 156 Mo. 344; Christian v. St. Louis, 127 Mo. 109; Heinrich v. St. Louis, 125 Mo. 424; Glasgow v. St. Louis, 107 Mo. 198. The city possesses the same powers under its present charter. Present Charter of St. Louis, art. 1, see. 1, par. 14. And possesses this power respecting streets and public places dedicated under the Town Plat Act before the adoption of the Scheme and Charter. Glasgow v. St. Louis, 107 Mo. 198. (2) The power to vacate streets and alleys being expressly conferred upon the city, and absolute, it was for the mayor and assembly to determine whether the alley, extending through part of a city block only, should be kept open or vacated in whole or -in part, and not a question for the courts. Gorman v. Railroad, 255 Mo. 483. (3) Where a municipal corporation exercises a power expressly granted, as distinguished from one merely incidental to its power as a municipality, and therefore implied, the motives of the municipal authorities will not be inquired into by the courts and the courts will not interfere, unless it appears that an ordinance passed in pursuance of such power is the result of fraud or the product of legislative whim or mere caprice. Swinner v. Heman, 148 Mo. 355; Dillon’s Municipal Corps. (5 Ed.), secs. 5801, 1160, p. 1839, note; McQuillin’s Municipal Corps., sec. 703. (4) Where, in the honest judgment of the public authorities, in whom the discretion is vested, the vacation of a street or alley is for the public good, it can make no legal difference that private interests are also benefited. It may be that such private advantage redounds to the welfare of the general public. These are questions of legislative expedience and for the decision of the municipal officers; not for the courts. Glasgow v. St. Louis, 107 Mo. 203; Kansas City v. Hyde, 196 Mo. 508; McQuillin’s Municipal Corps., sec. 1403, p. 2988. (5) So much of the ordinance as provides that the. vacated alley shall revert to the abutting property, is mere surplusage, and only declaratory of the law itself. Dillon’s Municipal Corps. (5 Ed.), sec. 1160, p. 1839, note; Improvement Co. v. Railway, 255 Mo. 519; Thomas v. Hunt, 134 Mo. 392. (6) The fact that the ordinance requires the abutting owners to compensate the city for the vacated ground, does not invalidate the ordinance. The modern conception is to require such compensation from those who derive an incidental benefit. Having the absolute power to vacate, the city 'could vacate conditionally. Patton v. Rome, 124 Ga. 525; Investment Co. v. Frazier, 137 Mich. 108. (7) The property of plaintiffs does not abut the alley, nor was the alley ever a part of their property. Neither the front nor rear of their lot is bounded by the alley, nor does the alley parallel or run along either of their side lines. The alley is cul-de-sac through part of the block and “dead-ends” against the north side of the property of plaintiffs. Plaintiffs, therefore, are not abutting owners. Realty Co. v. Police Jury, 127 La. 318. "Whatever damage plaintiff sustained by the vacation of the alley was in common with the public generally, differing at most in degree and not in kind. To enáble plaintiffs to maintain an action, either at law or in equity, it was necessary to plead and prove a damage special and peculiar to themselves. Realty & Inv. Co. v. Deere & Co., 208 Mo. 66 ; Knapp-Stout & Co. v. St. Louis, 156 Mo. 344; Knapp-Stout & Co. v. St. Louis, 153 Mo. 56.0; Glasgow v. St. Louis, 107 Mo. 198. And the fact that plaintiffs may be compelled, after the vacation of the alley, to pursue a somewhat longer route to reach their property from its street front, constitutes no peculiar or different injury. Zettel v. West Bend, 79 Wis. 316; Clark v. Railway, 70 Wis. 593. (8) If plaintiffs have been unlawfully injured, they have a' complete and adequate remedy at law in an action for damages. Therefore they are not entitled to relief by injunction. Christian v. St. Louis, 127 Mo. 109.

      John L. Corley for respondents.
    (1) “The alley in each block is a complete entity in itself and it is immaterial to the owners of the property in one block whether there is an alley in the next or any other block or not, and, likewise^ immaterial to the general public whether there are any alleys or not. It seems to us that it is plain that abutting property owners on an alley have property rights in the entire alley not shared by the general public.” Corby v. Railway, 150 Mo. 457; Faust v. Hope, 132 Mo. App. 287;. Dries v. St. Joseph, 98 Mo. App. 611. The ease of Christian v. St. Lonis, 127 Mo. 109, was decided on the equities involved and not in contravention of any of the principles contended for herein. The owner of property in the block-where a public alley is situated has rights independent of any reversionary interests, and .regardless of whether their property abuts on the portion of the alley sought to be closed. This is the right to a means of egress and approach over the alley. Christian v. St. Louis, 127 Mo. 109; Bailey v. Culver, 84 Mo. 531; Corby v. Railway, 150 Mo. 457. The plaintiffs in this case have no adequate remedy at law. A mere causal examination of the location of their property demonstrates this fact, and a court of equity in the exercise of a wise discretion has the right to intervene to prevent a wrong which has no full and adequate remedy. Christian v. St. Louis, 127 Mo. 109; Bailey v. Culver, 84 Mo. 531. (2) While the city has the general power to close streets and alleys,- it is also within the province of the courts to say whether the use for which it was closed is public or private or whether any private rights have been invaded. Gorman v. Railroad, 255 Mo. 483; Kansas City v. Hyde, 196 Mo. 498; Mining Co. v. Joplin, 124 Mo. 129; Smith v. McDowell, 148 111. 51; State v. Franklin, 133 Mo. App. 493; Glasgow v. St. Louis, 107 Mo. 198; Aldridge v. Spears, 101 Mo. 400. (3) There is no basis to the contention raised in the trial of this case that the portion of the alley closed does not abut the property of the plaintiffs. No distinction is made in any of the decisions between the ordinary accepted meaning of the word abut and its legal significance. The New Century dictionary defines the word as follows: “To touch at the end; to be contiguous; joined by a border or boundary; to terminate; against or in contiguity with, to impinge upon.” And illustrates the word “abuttal” thus: “That piece of land that abuts on, or is contiguous to another; a boundary, a line of contiguity. ’ ’ (4) Equity looks to the substance rather than to the form and looking to the substance of ordinance No. 25203 it is plain upon its face that the closing of this alley was conditioned upon the payment of two hundred dollars to the city by the appellants. Section 2 says: “The owners of said abutting land shall pay to the treasurer the sum of $200 within thirty days after the passage of this ordinance, otherwise said ordinance shall be null and void.” This clearly left the power to say whether the alley should be vacated or not in the hands of this private corporation. The Municipal Assembly has no authority to so delegate its power. Merchants Exchange v. Knott, 212 Mo. 616; Neill v. Gates, 152 Mo. 585; Kansas City v. Bacon,; 147 Mo. 259; Buggies v. Collier, 43 Mo. 353. (5) The provision that “the owners of said abutting land shall pay to the treasurer the sum of $200.00 within thirty days after the passage of this ordinance, otherwise said ordinance shall be null and void,”'plainly makes the transaction an attempted sale to the appellants of the portion of the alley closed. This the city is without authority to do. Kansas City v. Hyde, 196 Mo. 498; 'State v. Franklin, 133 Mo. App. 493q Smith v. McDowell, 148 111. 51, 22 L. B. A. 395; Watsen v. Gut-man, 24 L. B. A. 403; Harten v. Williams, 99 Mich. 429; Deland v. Powder Co., 205 111. 217. While it is contended that to close a street or alley upon the payment of a consideration by those who will be benefited “is the modern tendency,” such proceedings have never had the sanction of the courts of this State and have been frequently condemned as intolerable in many other jurisdictions. See cases cited above, also: Louisville v. Bannan, 99 Ky. 74; Hammer v. Elizabeth, 67 N. J. L. 129. (6) But the city of St. Louis has no power to divest plaintiffs of their rights except by virtue of the law that existed when these rights were acquired. Glasgow v. St. Louis, 15 Mo. App. 112; Price v. Thompson, 48 Mo. 361. The law provided how streets and alleys should be vacated at the time this dedication was made. This law was known as the Town Plat Act, which provided the manner in which maps and plats of cities, towns, villages and additions, both incorporated and unincorporated, should be filed. G-. S. .1866, chap. 44, sec. 8; R. S. 1879, sec. 6573; R. S. 1909, sec. 10294. This alley was dedicated to the public at the time it lay outside of the city limits of St. Louis and the title vested in the county of St. Louis “for the use and purpose aforesaid and none other.” Cameron v. Stephenson, 69 Mo. 373. The rights of respondents did not come through the exercise of the power of eminent domain by the city, but came through grant, and the city is without authority to deprive the respondents of these rights in any manner except as provided by law at the time these rights vested. Price v. Thompson, 48 Mo. 361; Warren v. Lyons City, 22 Iowa, 355; Railway v. Portland, 14 Ore. 196; Ruthford v. Taylor, 38 Mo. 315; Cummings v. St. Louis, 90 Mo. 259..
   WOODSON, J.

The plaintiff, the Kingshighway Supply Company, the owner of certain real estate situate in City Block No. 4095, fronting on Kingshighway, and the Union Sand & Material Company, its lessee, brought this suit in the circuit court of the city of St. Louis, against the Banner Iron Works and Ernest C. P. Koken, trustee, also owners of property in said City Block 4095, and the city of St. Louis, to secure a decree nullifying an ordinance of said city, known as Ordinance No. 26203, vacating a portion of the north-and-south alley which runs partly through said block.

The trial resulted in a decree in favor of the plaintiff, adjudging the ordinance void, enjoined the defendants from closing the alley, and commanding them to remove all ohstrnctions they may have placed therein. From this judgment the defendants properly appealed the cause to this court.

The facts of the case are very well stated by counsel for respondent, in the following language:

“All of the properties of the parties hereto are located in City Block 4095. It came down from the common grantor, Henry Shaw. The property of plaintiffs was sold by Henry Shaw to Edwin Berger in 1854; the plat thereof showing its subdivision into lots was recorded in 1855. The property of defendants in the same city block was sold by Henry Shaw to Francis Cooney in 1842, and the same was platted and a strip on Shaw avenue and the alley involved in this suit was dedicated to the public forever in 1872. This was while the property lay outside of the limits of the city of St. Louis. The north line of Shaw’s grant to Berger, which is now the property of plaintiffs, was the south line of Shaw’s grant to Cooney, which is now the property of defendants. The alley in question extends from Shaw avenue south to this line, abutting the north line of plaintiffs’ property, about 192 feet east of the east line of Kingshighway and 170 feet west of the west line of the St. Louis and Oak Hill Railroad.
“This alley is the only rear outlet to plaintiffs’ property, which has an undisputed value of $30,000. This alley was used as a means of egress and approach to the rear portion of plaintiffs’ land for a period of over twenty-five years, and at times has been the only means of egress and approach to plaintiffs’ property with wagons and teams. Ordinance number 26203 was designed to close that portion of the alley abutting plaintiffs’ property and to turn the same over to defendants herein.
“The plaintiffs allege in their petition that the vacation of the alley upon which their property ahuts serves no public purpose; that it was passed solely for the benefit of the Banner Iron Works; that it takes away plaintiffs’ only means of egress and approach' to the rear portion of defendants’ property; that the rights acquired by the plaintiffs established a special easement in said alley through the grant in the original dedication, which cannot lawfully be taken away from them by the city of St. Louis in the manner in which this ordinance was passed; that the attempted passage of this ordinance deprives plaintiffs of their private rights to use this alley without any compensation; that the passage of this ordinance conditioned upon the payment of $200 by the defendant is the attempted sale of public property and plaintiffs’ private rights therein to private individuals; that the closing of this alley would do the plaintiffs an irreparable injury for which they have no adequate remedy at law; that the ordinance is unjust, oppressive and unreasonable, and in contravention to plaintiffs’ constitutional rights.
“The answer, after a general denial, admits the dedication of the alley in question for public use and the filing of the survey and plat in the Recorder of Deeds’ office in the county of St. Louis; admits the passage of the ordinance and admits the payment by defendants of the consideration therein named of $200, and pleads that upon the payment of said $200 thereby said alley had been duly vacated. There is no affirmative plea that the plaintiffs were not abutting property owners to that portion of the alley closed.”

One of the disputed facts is that the respondents’ property abuts upon the alley proposed to be vacated.

The following plat will throw much light upon the questions involved:

Prom the statement of the case it will be seen that the questions of fact and law presented by this record are embraced in a very narrow compass; and that the determination of the question of fact, as to whether or not the property of respondents fronts on the alley, practically disposes of the proposition of law here presented for adjudication.

Barring- all constitutional questions, it g-oes without saying-, that the city of St. Louis, under its charter, had the power and authority to enact the ordinance in question, and vacate the alley mentioned. [Former Charter of the City of St. Louis, sec. 26, paragraph 2 of article 3; and present Charter of said city, sec. 1, paragraph 14 of article 1;. Knapp, Stout & Co. v. St. Louis, 153 Mo. 560; Knapp, Stout & Co. v. St. Louis, 156 Mo. 343; Christian v. St. Louis, 127 Mo. 109; Heinrich v. St. Louis, 125 Mo. 424; Glasgow v. St. Louis, 107 Mo. 198.]

As was said by this court in the case of Gorman v. Railroad and the City of St. Louis, 255 Mo. 483, “This power [of the city] is full and complete; constituting the city the sole judge when the streets shall be opened or closed for public travel, subject, however, to the constitutional inhibition against taking or damaging private property for public use.”

We will, therefore, pass this question, as having been fully settled by the repeated decisions of ibis court.

The next question presented is, does the prop-the respondent abut upon the alley mentioned within the legal significance of that

Counsel for respondents cite and rely upon the following authorities as supporting the affirmation of this proposition: Corby v. Chicago, Rock Island & Pacific Ry. Co., 150 Mo. 457; Faust v. Hope, 132 Mo. App. 287; Dries v. St. Joseph, 98 Mo. App. 611.

I am perfectly familiar with these cases, having tried the first and last while one of the circuit judges at St. Joseph.

In all three of those cases the property of the respective plaintiffs abutted the alley mentioned, that is, they ran back to and the rear ends thereof fronted upon the sides of the alley, and not at the end thereof, as does the property in this case. For that reason they are not in point here.

Upon the other hand, counsel for appellants cite us to the case of Friscoville Realty Co. v. Police Jury, 127 La. 318, as sustaining the proposition that property situate at the end of an alley is not an abutting property within the meaning of the law. In discussing this question the Supreme Court of Louisiana, in that case said:

‘ ‘ The sugar refinery is not an abutting owner' is one of the plaintiff’s grounds.
“This is another ground fatal to the defense.
“In considering this point, we noted that the sugar refinery’s property (one of the petitioners) is at the end and not along the road.
“It follows that its owners have no interest in any part of the public road over which it is the contemplation to locate the car line. As we read the statute before cited, the owners of property have the right to sign, as they are the owners of one-half the abutting road; not so with the sugar refinery.”

In our opinion that case announces the proper doctrine in such cases, and if followed by this court, then the respondent has no right, title or interest in or to the alley in question; and would, therefore, if the alley is vacated, sustain only such damages as are common with the public generally.

Before the respondents arp entitled to the relief prayed they must plead and prove that they are special and peculiar damages different from those sustained in common with the public generally. [Cummings Realty & Investment Co. v. Deere & Co., 208 Mo. 66; Knapp, Stout & Co. v. St. Louis, supra; Knapp, Stout & Co. v. St. Louis, supra; Glasgow v. St. Louis, supra.]

The ruling of the Supreme Court of Louisiana in the case mentioned is in harmony with the general statutes and adjudged cases of this State, in this: That when petitions are to be signed and presented for street improvements and tax-bills are issued in payment for such improvements, only such property-owners who own property fronting on the side lines of the street or alley can legally sign such a petition, and only such property, in the absence of an express statute to the contrary, which fronts- upon the side lines of the street or alley is chargeable with the cost of such improvements.

I know of no adjudication to the contrary. But if counsel for respondents are correct in their contention that their land abuts the alley in question, then unquestionably the» owners .thereof might lawfully petition for the improvement of the same, and if improved their property would be taxable to pay for said improvements.

And suppose respondents’ said property is taxable for all improvements which should be made in said alley, then by what rule should their proportional part of the- cost thereof be ascertained and determined, to.say nothing of the city’s constitutional power to tax it for special benefits.

Clearly there is no such rule.

Moreover, it is the settled law of this State, in the absence of an express statute to the contrary, that the abutting .property fronting upon the side lines of a street or alley is taxable for the entire cost of the construction, and each piece of property is taxable in proportion to its frontage thereon, which, of course, would leave no sum whatever, to be taxed to the property abutting upon the end- of a street or alley.

For the reasons stated, we are clearly of the opinion that respondents are not entitled to the relief prayed; and we, therefore, reverse the judgment and remand the cause with directions to the circuit court to dismiss respondents’ bill.

All concur.


author: RAILEY, C.

text:
    WILLIAM LEAVEA v. SOUTHERN RAILWAY COMPANY, Appellant.
    Division One,
    December 2, 1915.
    WITNESS: Competency: Tort: Death of Tortfeasor. Section 6354, Revised Statutes 1909, declaring that where one of the original parties to a cause of action in issue and on trial is dead, the other party to such cause of action shall not he admitted to testify, applies to actions ex delicto; and, therefore, where plaintiff sues a railroad company to recover damages on account of personal injuries claimed to have been inflicted upon him, in the form of an assault, by an alleged agent of defendant, while acting within the scope of his employment, and thereby created the cause of action, and said agent is dead at the time of. the trial, the plaintiff is not permitted under the statute to detail in evidence his version of the controversy and the assault made upon him. [Approving Leavea v. Southern Railroad Co., 171 Mo. App. 24, and disapproving Drew v. Wabash Ry. Co., 129 Mo. App. 459.]
    Appeal from St. Louis City Circuit Court. — Hon. James E. Withrow, Judge. ,
    Reversed and remanded (with directions).

      Samuel B. McPheeters for appellant.

      Frank A. Thompson for respondent; Guy A. Thompson of counsel. .
   RAILEY, C.

Plaintiff brought suit in the circuit court of the city of St. Louis, Missouri, to recover damages on account of injuries, claimed to have been inflicted upon him, in the form of an assault, by an alleged agent of defendant, while acting within the scope of his employment. Since said assault, and before the trial in the circuit court, the alleged agent, Teague, departed this life.

Notwithstanding the prior death of Teague, who is charged with having made the assault and thus created the cause of action, plaintiff was Permitted, over the objection and exception of defendant, to detail in evidence, at the trial, his version of the controversy and the assault made upon him. To the offer of this evidence concerning all that was said and done by Teague, defendant’s alleged agent ánd watchman at the time, an objection and exception was interposed, on the ground that Teague, the other party to the transaction in issue and on trial, was dead. The trial court overruled said objection and'permitted plaintiff to testify as to what was said and done between himself and Teague.

Upon the trial in the circuit court, the jury returned a verdict in favor of plaintiff for $999, as compensatory damages, and $1000 as exemplary damages, and judgment was entered accordingly. Defendant filed a motion for new trial and in arrest of judgment in due time. The trial court ordered a remittitur so as'to reduce the compensatory damages to $500 and the exemplary damages to same amount. Thereupon the court, after a remittitur was entered, rendered judgment for $1000, and overruled defendant’s motion for a new trial and in arrest of judgment. The case was duly appealed to the St. Louis Court of Appeals, and the latter reversed and remanded the canse, on the ground that the trial court erred in permitting plaintiff to testify, over defendant’s objection, to the transactions and conversations which occurred between himself and Teague, after the latter had died.

The opinion of the Court of Appeals was written by Judge Nortoni, and concurred in by each of the other judges of said court. The latter, deeming the conclusion reached, to be in conflict with the opinion of Judge Broaddus, in Drew v. Wabash R. R. Co., 129 Mo. App. 459, on identically the same question, certified the case to this court, as provided by law under such circumstances. Counsel for appellant, at the oral argument of said cause here, announced with commendable fairness, that the only question before us was whether the testimony of plaintiff in regard to the transactions and conversations between himself and Teague, was competent under our statute.

The controversy is thus narrowed down to a construction of section 6354, Revised Statutes 1909, which reads as follows:

“No person shall be disqualified as a witness in any civil suit . . .; Provided, that in actions where one of the original parties to the contract or cause of action in issue and on trial is dead, or is shown to the court to be insane, the other party to such contract or cause of action shall not be admitted to testify either in his own favor or in favor of any party to the action claiming under him.”

We have carefully examined the opinion of Judge Broaddus in the Drew case supra, in connection with many other authorities in respect to the same subject, and have been unable to reach the conclusion, that the disqualification called for in the above section of our statute does not apply in actions ex delicto. We can conceive of no good reason for applying the provisions of said section to actions upon contract, which would not apply with, equal force to circumstances like those in the case at bar. We are therefore of the opinion, that, the Drew case does not properly declare the law in respect to the foregoing matter and should not be followed.

The opinion of the St. Louis Court of Appeals herein, is reported in 171 Mo. App. 24 et seq. It contains a full statement of the case and presents an able review of the principles of law in regard to the matter under consideration. The conclusion reached by the above court, in its treatment _ and disposition of this cause, is accordingly affirmed.

In the recent case of Eaton v. Cates, 175 S. W. l. c. 953, we construed section 6354, supra, in accordance with the views of the St. Louis Court of Appeals supra. Cogent reasons for observing the above construction of said section of our statute will be found discussed in Chandler v. Hedrick, 187 Mo. App. l. c. 670; Diggs v. Henson, 181 Mo. App. 34; Bone v. Friday, 180 Mo. App. 577, 581; Taylor v. George, 176 Mo. App. l. c. 222-3; Leavea v. Railroad, 171 Mo. App. l. c. 27; Lieber v. Lieber, 239 Mo. 1; Williams v. Edwards, 94 Mo. 447, as well as other cases in this State.

The judgment of the St. Louis Court of Appeals is therefore affirmed, and the cause reversed and remanded with directions to the circuit court- to proceed with the case in accordance with the views here expressed.

Brown, C., not sitting.

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

All of the judges concur.