author: WOODSON, J.

text:
    JOSEPHINE PELTIER v. CITY OF ST. LOUIS, Appellant.
    Division One,
    November 29, 1911.
    1. NEGLIGENCE OF CITY: Public Street: Proof and Instruction. Where the ordinances of the city, introduced in evidence, in many ways recognize the existence of the streets in question as public streets and the parol evidence shows they have been extensively traveled by the public for many years, and there is no evidence to the contrary, the court should not sustain a demurrer to the evidence on the ground that there is none tending to show that the streets, at the place of the injury, were public streets, nor should it submit that question to the jury, but should instruct them that the streets were public thoroughfares, and under such circumstances an instruction for plaintiff which does not define a public highway is not error.
    2. -: Rut in Street: Instruction: At any Point. An instruction telling the jury that if they believe from the evidence that the public street “at the point mentioned in the evidence . . . was on that day in an unsafe and dangerous condition for travel thereon,” does not authorize a verdict for plaintiff if the jury believe the street was in an unsafe and dangerous condition at any place, there being no evidence that the street was defective at any other place, and the evidence identifying the rut at which plaintiff was injured with that mentioned in the petition.
    3. -: Public Highway: Instructions: Error Against Respondent. Where under the facts the court should have declared, as a matter of law, that the street, at the point of the accident, was a public highway, an instruction submitting that issue to the jury, if erroneous, was an error against plaintiff, of which the defendant city on its appeal cannot complain.
    4. -: Instruction: Damages: Medicine: No Evidence. Where plaintiff testified she did not “require very much medicine except when I was taken with blood poison” and her evidence shows that she paid out $219 for nurse hire, that one physician charged ,$125 and that another had not presented his bill, an instruction telling the jury that they might consider “any expenses she may have incurred for medicine, medical attention and nursing,” cannot be held to be without evidence to support it, in view of the fact that both arms were broken, one in two places, and she was helpless for eight months, and the verdict ($1500) is very small, considering her injuries.
    Appeal from St. Louis City Circuit Court. — Now. James E. Withroio, Judge.
    Affirmed.

      Lambert E. Walther and Tmiman P. Young for appellant.
    (1) There was not sufficient evidence to take the case to' the jury in support of plaintiff’s allegation that Euclid avenue at' the place mentioned was a public street and opened by the city to the public for travel. It is within the discretion of the city officials whether or not to open up a public street. Mere title to the street is not sufficient to show that the city has assumed jurisdiction over it as a public street. The city will not be liable until it does some act showing an intention to assume responsibility, or some act that amounts to an invitation to the public to use the street. A street may exist on paper and the title to- the same be in the city, and the city not be responsible for its condition. Furthermore, the city may elect to improve only a part of a street; it may open for use only half of the width of a street and leave the remainder in its natural and unimproved condition, and will not be liable for the defects existing upon the unimproved portion. Down-end v. Kansas City, 156 Mo. 68; Downend v. Kansas City, 71 Mo. App. 529; Meiners v. St. Louis, 130 Mo. 284; Baldwin v. Spring-field, 141 Mo. -205; Brinck v. Collier, 56 Mo. 156; Craig v. City of Sedalia, 63 Mo. 417; Hunter v. 'Weston, 111 Mo. 176; Conner v. City of Nevada, 188 Mo. 159; Ely v. St. Louis, 181 Mo. 729'; Atkinson v. City of Nevada, 133 Mo. App. 1; Benton v. St. Louis, 217 Mo. 703; Curran v.” St. Joseph, 143 Mo. App. 618; Holding v. St. Joseph, 92 Mo. App. 143. (2) The power to pave a street is a legislative power for the exercise or non-exercise of which the city will not be liable. It may in the exercise of discretion, leave roads in the outlying districts in their natural condition as dirt or mud roads and no right of action can accrue for failure to pave. In case of an accident on a mud or dirt road the plaintiff mqst show that the accident was due to some condition which was unusual and sufficiently flragrant to charge the city -with notice and was not merely incident to the character of the road. The question of negligence, like the question of notice, is a relative one and will depeiid upon the location of the street in question and upon its general character. Young v. Kansas' City, 27 Mo. App. 114; G-allagher v. Tipton, 133 Mo. App. 560; Neff v. Cameron, 213 Mo. 358-Stephens v. Macon, 83 Mo. 345; Franke v. St. Louis, 110 Mo. 516'; Carrington v. St. Louis, 89 Mo. 208; McKissick v. St. Louis, 154 Mo. 588; Williams v. Hannibal, 94 Mo. App. 549. (3>) The court erred in giving instruction number five of its own motion. This instruction authorizes recovery for medicine, though there was no evidence that the plaintiff had incurred any expense therefor. For this reason the instruction was erroneous. Heidbrink v. United Railways Co., 133 Mo. App: 40; Radtke v. Basket & Box Co., 229 Mo. 17.

      Jolm M. Fulton for respondent.
    (1) When a street is a public street it is the bounden duty of the municipality to keep it free from defects, obstructions and ckuckkoles, and to be on the alert to repair and remove them to insure the public safety. The defendant’s failure to repair caused the injury to the plaintiff. Benton v. St. Louis, 217 Mo. 700. (2) The city of St. Louis, the said defendant, should have been more on the lookout for defects and obstructions on the aforesaid Kingshighway boulevard because there had been excessive rains off and on during the fifteen days preceding the day of the accident. The defendant neglected its duty, and due and proper care were not exercised. Meiness v. The City of St. Louis, 130 Mo. 274. (3) A city that has a dirt road that is a public street is liable for injuries effected by defects and obstructions in that road that it neglects to repair after having had sufficient notice. (4) The city of St. Louis assumed ownership and control of Kingshighway boulevard running directly south from Euclid avenue and of Euclid avenue itself by its permission to the Taylor Avenue Railroad Company to lay its tracks over the Wabash Railroad tracks on Euclid avenue; and the construction by the city itself of the Kingshighway Bridge over the Missouri Pacific and San Francisco Railroad tracks on Kings-highway boulevard, as aforesaid, are acts of - themselves indicative of ownership and a recognition of Kingshighway boulevard aforedescribed as a public street. City Ordinance No. 17,010; City Ordinance No. 17,188; City Ordinance No. 21,346; Ruppenthal v. City of St. Louis, 190 Mo. 225.
   WOODSON, J.

The respondent brought this suit in the circuit court of the city of St. Louis, to recover $10,000, against said city, as damages for personal injuries sustained by her while driving along one of the streets thereof, through the alleged negligence of the city, by permitting said street to become and remain in an unsafe and dangerous condition to persons driving thereon.

The facts of the case are practically undisputed, except as will be hereafter noted, and are substantially as stated by counsel for respondent, namely:

“The plaintiff, whose age was forty-five at the time of the trial of the case, was on June the 9th, 1904, on her way home between nine and ten o’clock at night, driving a horse attached to a small spring wagon on Euclid avenue in the city of St. Louis, Missouri, crossing the Wabash bridge and passing on about two hundred feet to the terminus of Euclid avenue where it meets and merges into Kingshighway boulevard, which runs due and straight south beyond the said Euclid avenue. The respondent having arrived about ten feet from the paved end of Euclid avenue and on Kingshighway boulevard, her horse, going in a trot, stepped into a hole or deep1 depression in the street, caused by the abrasion and wearing of heavy teams, vehicles, mud and rain on said Kingshighway boluevard, and the fore wheel of her vehicle entered into it with such suddenness and force 'as to throw her out ovgr the horse’s back onto the ground and break her right arm and left arm in two places, causing her much suffering and pain and rendering the said limbs almost useless. While the plaintiff was g’oing south on Euclid avenue and on Kingshighway boulevard, a certain work car, with more noise than other cars, closely followed her, and stopped when she was thrown out and its motorman and conductor ran to her assistance, picked her up and placed her on the grass upon a matress she had in the wagon, where she remained until half past eleven o ’clock that night, and then was taken in a city ambulance to its hospital and was there seventeen days. For eight months the plaintiff had to be fed as a child of tender years and was unable to dress herself, had to have her arms reset and could not use them for eight months and was under the care of a physician over a year. At the time of the accident the plaintiff was engaged in the laundry business, and because of her misfortune it ceased audits profits of eighteen dollars a week also. Her nurse hire amounted to $219 and her physicians’ bill to $125.”

There was an abundance of evidence tending to show that the street in question was a public thoroughfare of the city, and none to the contrary; also that the hole in the street was dangerous, and had existed for a sufficient leng*th of time prior to the injury to have enabled the city to have discovered and repaired the same, had its servants and agents exercised ordinary care in that regard.

A trial was had, and the jury, under the instructions of the court, found for the plaintiff, and assessed her damages at $1500', and after taking the proper preliminary steps, the city appealed the cause to this court.

I. Counsel for appellant first complain of the action of the trial court in refusing to sustain a demurrer to respondent’s evidence.

This complaint is predicated upon the contention that there was no evidence introduced tending to show that Kingshighway boulevard, or Euclid avenue, at the place of the injury, were public streets, or were opened by the city to the public for travel.

There is no merit whatever in this contention. The ordinance of the city, introduced in evidence, in many ways recognized their existence as such; and the parole testimony of the witnesses shows that they had been extensively traveled by the public for almost a half century.

In fact there was no evidence of any consequence to the contrary.

Under the uncontradicted evidence of both parties, we are unanimous in the opinion that the court should not have submitted that question to the jury, but should have told them that both of said streets were 'public thoroughfares of the city.

What we have here said also disposes of the objection urged against the first instruction given by the court on behalf of respondent, which, it is contended, does not define the term “public highway” and ignore's the defense that the portion of the street, though belonging to the city, had never been opened for travel,

II. The second instruction given by the court on behalf of the respondent is complained of by counsel for appellant, for the reasons stated: “This instruction makes no mention of the particular rut which is alleged to have caused the accident, but authorized the jury to return a verdict for plaintiff if they believed that the road was in an unsafe and dangerous condition” at any other place.

The objection to that instruction is predicated upon a mistake of fact. The instruction in that regard, reads as follows: ‘ ‘ The court instructs the jury that if you believe from the evidence that Kingshighway, near its intersection with Euclid avenue, in the city of St. Louis, at the point mentioned in the evidence, was on the 9th day of June, 1904, a public street of said city as mentioned in the instructions, and was on that day in an unsafe and dangerous condition for travel thereon,” etc.

The hole mentioned in the petition and which caused the injury, was located at the point in the street mentioned in the evidence, as above stated.

..There is nothing in the instruction to warrant the contention that the jury was authorized to find for the plaintiff, if they found that the street was in a dangerous or unsafe condition at any other point than the one mentioned in the petition and evidence. In fact, there is not a word of evidence in this -record which tends to show that the street was defective at any other point than the one at which respondent was injured.

III. Instruction number three given for respondent is also complained of.

The vice of that instruction -complained of, is couched in the following language: “If the jury believe from the evidence that Kingshighway, near its intersection with Euclid avenue, at the point mentioned in the evidence . . . has been and was a public street in the city of St. Louis, belonging to said city as a public street, for more than ten years prior to June 9th, 1904, and that_during all that time it had been and was used by the public for travel in vehicles, and that it was a public necessity, that said street at said point mentioned herein should be in a reasonably safe condition .for travel, ’ ’ etc.

This objection is of kindred nature to the one mentioned in paragraph one of this opinion. There, as here, the court was imposing upon the respondent the necessity of proving to the satisfaction of the jury that the street in question was a public highway. We there held, that under the uncontradicted evidence in the case the court should have declared, as a matter of law, that the street was a public highway, and under that view of the law it was wholly immaterial whether the jury found it to be such or not, and all instructions given by the court submitting that question to the jury were error in favor of the city and against the respondent, and if error, the appellant is in no position to complain.

IY. Instruction numbered five given for respondent is also objected to, because it authorized a recovery for medicine, though there was no evidence that she had incurred any expense therefor.

The evidence shows that one physician charged her $125, and that she had another, but he so far had presented no bill for his services.

The evidence also showed that she paid $219 for nurse hire.

In the same connection respondent was asked.

* ‘ Q. What did you pay for medicine ? A. I didn’t require very much medicine except when I was taken with blood poison.”

In mentioning the elements of damages that the jury might take into consideration in fixing the amount of their verdict, the instruction under consideration, among other things, told them that -they might consider “any expenses she may have incurred for medicines, medical attention and nursing,” etc.

In the light of the evidence set out, we are of the opinion that this objection is not well founded. It is true her evidence shows she did not need much medicine, and presumably she did not incur much of a debt on that account, yet we have no right to presume, under that evidence, that the jury allowed'her anything more than a nominal sum therefor, which they had a perfect right to do.

The only surprising thing to us is that the verdict of the jury in this case was so small. The respondent had her right arm broken in one place, and her left arm broken in two places; she was confined to the hospital for seventeen days, and was perfectly helpless for eight months; could not feed or wait upon herself during that time. She incurred $219' for nurse hire, and more than $125 for medical treatment. Yet the jury allowed her only $1500.

The city should consider herself fortunate in escaping with so small a verdict.

Finding no error in the record, the judgment of the circuit court is affirmed.

All concur.


source: Caselaw Access Project

author: LAMM, J.

license: Public Domain

text:
    HARRY S. LEAVELL, Appellant, v. LESLIE E. BLADES, Collector.
    Division One,
    November 29, 1911.
    1. TAXATION: Territorial Limits: Situs of Property: Constitution: Power of Legislature. The words of the Constitution requiring taxes to “be uniform upon the same class of subjects within the territorial limits of the authority levying the tax” implies that the subjects of taxation shall be within the territorial limits of the authority levying the tax; but it does not follow that the Legislature, if it saw fit, might not enact a statute making the situs of choses in action, being intangible personal property, the same as the domicile of the owner, for taxation purposes.
    2. -: Intangible Property: Never In State. The statute makes intangible property, never in Missouri, therefore never sent away, non-taxable here, even though the owner may reside here. It preserves intact the philosophy of taxation, which is that the protection of the law of the locality gives the right to tax property, and where that protection in nowise exists the right to tax fails.
    3. -: -: -: Note and Deed of Trust in Alaska. A note belonging to a resident and citizen of this State, but which note was never in this State and which evidences a debt created in the Territory of Alaska, payable in Alaska by a resident of Alaska, secured upon real property in Alaska and deposited in a bank there, is not taxable in this State. Neither a corporation nor an individual is, -by the statute, required to pay taxes on evidences of debt outside of this State.
    Appeal from Montgomery Circuit Court. — Son. Samuel Davis, Special Judges
    Reversed and remanded (with directions).

      John M. Barker for appellant.
    (1) It is not right or lawful to compel the appellant, a citizen of Missouri, to pay taxes on the note for $5000 in Alaska. Such property is not subject to taxation in Missouri, unless it has been removed from the State to avoid taxation. R. S. 1899', sec. 9147. That oath certainly means something, and cannot have any fair interpretation unless it means that there is such personal property in foreign jurisdictions that is not subject to tax in Missouri. State ex rel. v. Dunnica, 69 Mo. 454, gave a construction to the oath which I believe has never been molested. The cases in which that case has been discussed are not such as the appellant’s in this case. It stands alone. But there is no law in this State to tax appellant’s note in Alaska. The Assessor’s warrant of authority to assess property, domestic and foreign, is in section 9121, which only allows him to assess foreign property, “made taxable by the laws of this State,” plainly and affirmatively implying that there is property in foreign jurisdictions that is not taxable in Missouri; and further implying that if there is any such law authorizing such assessment, it is not section 9121. If it were intended to tax property in the furthermost corners of the world it ought to appear somewhere in the Constitution or laws. (2) If there is any statute law in Missouri authorizing the' taxation of property in foreign jurisdictions, then it is void under section 3 of article 10' of the Constitution of Missouri, which provides” that taxes shall be uniform, and shall be levied and collected by general laws. The Legislature by Secs. 9338 and 9339, R. S. 1899, provided therein that all railroad companies in this State should be required to pay taxes on their property in this State, and that for that' reason the appellant ought not to pay any such tax as the subject of contention in this case. That act was a legislative construction that personal property rightfully beyond tbe State is not the subject of taxation in this State; (3) The right of taxation rests on the power and willingness of the State to protect the property taxed. In no way could the State of Missouri protect the appellant’s note or help him to collect it in Alaska. Mo. Const., sec. 5. art. 10; Turnpike Co. v. Sandford, 164 U. S. 592; Jennings v. Coal Bridge Coal Co., 147 IT. S. 147- State v. St. Louis County Court, 47 Mo. 594; Curtis v. Ward, 58 Mo. 295'; City of Plattsburg v. Clay, 67 Mo. App. 497; Wilcox v. Ellis, 14 Kan. 588.

      Harry G. Black for respondent.
    (1) Appellant’s $5000 note in Alaska, under the evidence in this ease and under the laws of the State, was assessable and taxable in Montgomery county in 1906. R. S. 1899', sec. 9121; Kirkland v. Hotchkiss, 100 H. S. 491, 15 Wall. 320; Cooley on Taxation, 85; State ex rel. v. Renshaw, 166 Mo. 682; Valle v. Ziegler, 84 Mo. 214. (2) By an act of the Legislature, approved March 28, 1881 (Laws 1881, p. 178; R. S. 1899, sec. 9121), all notes, bonds and other evidences of debt, made taxable by the laws of this State, held in any state or territory other than that in which the owner resides, are made assessable in the county where the owner resides. This act is not unconstitutional, as the situs of personalty for the purposes of taxation from time immemorial has been a matter for the lawmaking power, which has undoubted power in the premises. 2 Cur. Law, sec. 4, p. 1800’; City of Winston v. Salem, 131 N. C. 404; City of Baltimore v. Safe Deposit & Trust Co., 97 Md. 659; School District v. Bowman, 178 Mo. 654. The words in Sec. 9121, R. S. 1899, ‘ ‘made taxable by the laws of this State,” may imply that there is property in foreign jurisdictions that is not taxable in Missouri, but nevertheless, they can only be construed to mean and refer to notes, bonds and other evidences of debt held and located in foreign jurisdictions, which would be taxable by the laws of this State in the event that they were held and located in this State. Notes and bonds that are made taxable by the laws of this State are: all solvent notes of whatsoever kind, secured or unsecured, owned by persons residing in this State, and all bonds of whatsoever kind, whether issued by incorporated or unincorporated companies,'towns, townships, cities, counties, states or other corporations, held or controlled by persons residing in this State, whether for themselves or as guardians, trustees or agents, on which the holder or owner thereof is receiving or is entitled to receive interest for themselves or others. R. S. 1899, sec. •9123. Hence, any notes or bonds that come within the above description held in any state or territory other than that in which the owner resides, shall be assessable in the county where the owner resides. And appellant’s $5000 note, being solvent, and secured by a mortgage on a mining claim, is a note within the above description and definition, and is taxable by the laws of Missouri and although it is held in Alaska, it is owned by a resident of Montgomery county, and was assessable in Montgomery county in 1906. Section 9121 is not void under section 3, article 10', Con- - stitution of Missouri. It is a general law, and applies alike to all persons within the territorial limits, and is valid. Elting v. Hickman, 172 Mo.. 237. The only prohibition in the section being discussed is that which forbids inequality, favoritism, to be exercised in imposing taxes upon the same class of subjects. So long as this is not done, the Constitution is not infringed nor the rules of uniformity and equality violated. St. Louis v. Bowler, 94 Mo. 630; Cooley on Taxation (2 Ed.), 1701, 171 and notes. Section 9121 is not in violation of the Fourteenth Amendment of United States Constitution. It does not' deny to appellant “the equal protection of the laws.” .
   LAMM, J.

Injunction to restrain the collection of taxes. Plaintiff, from birth, a citizen of Missouri and resident of Montgomery county, at spells was in Alaska as a gold digger. The summer of 1906 found him at home in Missouri. Then and there, applied to by the assessor of said county for a list of his taxable property,- he gave in such list, and thereafter in due time paid the taxes assessed and levied against the property so listed by him. At the time of such listing he told the assessor he had while in Alaska deposited, for assay purposes in the Valdez Bank in the town of Valdez in that territory $10,000 in gold dust dug in Alaska mines. Further, that while in Alaska he had loaned a citizen of that territory like gold dust of the value of $5000, had taken a note evidencing the loan, and security in the form of a mortgage upon a mining claim there, and had left the note and mortgage in said Valdez Bank. Said gold and note were in Alaska at the time of the assessment and neither the one nor the other had ever been in Missouri. To the list then made out was appended the affidavit prescribed by section 11,351, Revised Statutes 1909, which plaintiff signed and swore to before the assessor, of which affidavit more anon. Simultaneously a controversy sprung between the two anent this gold dust and note, plaintiff refused to list them and the assessor was of opinen they should be listed. Subsequently, being advised, the assessor included the note and gold dust in the taxable property of plaintiff, and furnished an amended list to the county clerk, including said added items. Thereat taxes were levied against them and spread on the tax hooks of Montgomery county. Plaintiff unsuccessfully complained to the hoard of equalization. Afterwards he sought a remedy by certiorari, but was cast because the record of that board did not show sufficient data to grant relief. Thereafter he brought this suit for injunctive relief, charging that the assessment of those items and the subsequent levy of taxes thereon were invalid for the reasons outlined. The chancellor’s decree enjoined the collection of the tax upon the gold dust, but refused to enjoin that upon the note. Defendant, collector, stood upon the decree without appeal. Plaintiff appealed in apt time and due form.

There is no dispute on the facts. Those disclosed at the trial are as stated; and the main question here is: Under our revenue laws is a note belonging to a resident and citizen of this State, but which note never was in this State and which evidences a debt created in Alaska, payable in Alaska by a resident of Alaska, secured upon real property in Alaska and deposited in a bank there, taxable in Missouri?

There are other propositions asserted by appellant, but the foregoing is the main one and others will not be reached unless that one be decided against him.

Our Constitution- prescribes (art. 10, see. 3) that taxes “should be uniform upon the same class of subjects within the territorial limits of the authority levying the tax.” The phrase, “within the territorial limits of the authority levying the tax,” attaches itself to the noun, “subjects,” as well as to the idea of uniformity; and it may well be that our Constitution-makers had in mind that the subjects of taxation should be within the territorial limits of the authority levying the tax. It does not follow that the Legislature might not, if it saw fit, enact a statute making the situs of choses in action, ihtangible personal property, the same as the domicile of the owner, for taxation purposes. That might be an unjust law in cases easily put, but nevertheless it might be valid law. It is our task then to see whether it has done that in so clear and unmistakable a way that there can be no two ways about it.

When the tax-gatherer puts his.finger on the citizen he must also put his finger on the law permitting it. Not only so, but (if possible) our revenue laws should be so construed that the honest citizen does not bear the whole or greater part of the burden of taxation, and the tax-dodging citizen escape.

Respondent chiefly relies on section 11,337, Revised Statutes 1909. Appellant chiefly relies on section 11,351.

Section 11,337 reads: “All personal property of watever nature and character, situate in a county other than the one in which the owner resides, shall be assessed in the county where the owner resides, except ás otherwise provided by section 11,355; and all notes, bonds and other evidences of debts made taxable by the laws of this State, held in any state or territory other than that in .which the owner resides, shall be assessed in the county where the owner resides; and the owner, in listing, shall specifically state in what county, state or territory it is situate or held.”

The provision of section 11,351 on which appellant lays main stress is that part of the oath, reading: “. . . And I do further solemnly swear, or affirm, that I have not sent or taken, or caused to be sent or taken, any property, money or bills, bonds or notes, or other securities or evidences of debts, out of this State to avoid taxation. So help me God.”

It is a trite and cardinal canon of interpretation of statutes to attend to the state of the old law, the mischiefs arising therefrom, the remedy to be provided and then to so interpret the new law as to advance the remedy and suppress the mischief. [Decker v. Diemer, 229 Mo. l. c. 324.]

Section 11,337 was enacted in 1881 and, with immaterial (if any) changes, was the law when the assessment was made and when this case was tried. [Laws 1881, p. 177.] It was approved March, 28th, 1881. The very same Legislature by its act, approved four days before, amended the sections of the statute relating to lists to be made out by the taxpayer and the affidavit to be made by Mm and attached to his assessment list, and those laws as then amended now appear without material change as sections 11,348 and 11,351, Revised Statutes 1909 — said affidavit included the clause heretofore quoted from section 11,351.'

Attending to the foregoing canon of interpretation, it will be profitable to examine the state of the revenue laws in the particulars in hand, as interpreted by this court prior to the time of said- several enactments of 1881 (albeit, always mindful of the dictum of Chief Justice Marshall, viz.: “Judicial power is never exercised for the purpose of giving effect to the will of the judge, but always for the purpose of giving effect to the will of the law”).

In 1867, in St. Louis v. Ferry Company, 40 Mo. 580, it was ruled (quoting from one of the syllabi) that, “The personal property of a resident actually situated beyond the limits of this State, is without its jurisdiction, and cannot be assessed for taxation in this State; but the property of a non-resident is taxable here if it be found situate within the local jurisdiction, whether in the hands of the owner or his agents.” The reasoning upon which that pronouncement is rested appears in the following excerpt: “In reference to taxation, personal property does not necessarily follow the domicile of the owner, nor does its liability to taxation depend upon his residence, merely, but rather upon the local situation — the situs — of the property. [Finley v. City of Philadelphia, 32 Penn. 381.] The property is subject to taxation in consideration of the protection which it receives from, the laws of the place where it is found, and where the owner or Ms agent is resident.”

In State ex rel. v. County Court, 47 Mo. 594, decided in 1871, it w;as ruled that bonds of a domestic corporation owned by a citizen of Illinois, but in this State for purposes of ancillary administration, were taxable here. That, the actual situs of personal property in the domicile of the owner determines under the law in what state it should be taxed. In reaching that conclusion the court reasoned from the premises that the right of taxing such bonds is predicated on the theory of local protection afforded the property of the owner at the actual situs of the property. Such' bonds swell the wealth of the locality, are protected by its laws and should be subject to its burdens. The doctrine thus announced is rested upon the authority of approved cases in point (Vide, pp. 600-1). The court points out that the dogma that, the situs of personal property is the domicile of its owner, is fiction, and that local color is given to its truth by the law in relation to the distribution and succession of estates.

Pausing to speak to that view of it, by way of comment we here observe that a fiction of the law is “an assumption or .supposition of law that something which is or may be false is true, or that a state of facts exists which has never really taken place.” [Bl., L. Diet., tit. “fiction. ”] Now as to legal fictions, the invariable maxim is: in the fiction there is always equity; a legal fiction is always consistent with equity (In fictione juris, etc.); and therewith agrees Blackstone (3 Blk., p. 43), viz.: “ And these fictions of law, though at first they may startle the htudent, he will find upon further consideration • to be highly beneficial and useful; especially as this maxim is ever invariably observed, that no fiction shall extend to work an injury; its proper operation being to prevent a mis- • chief, or remedy an inconvenience, that might result from the general rule of law.”

The premises considered we ought not, based on a mere fiction, draw a conclusion that would result in injury and wrong. If, then, there be no mandatory statute (which matter we will presently consider) making the situs of all personal property the domicile of the owner for taxing purposes, we ought not to hold that plaintiff’s note, having an actual situs in Alaska, thousands of miles from Missouri, protected only by its laws, collectible ás a chose in action on due process only by courts maintained as a burden upon the taxpayers of that territory, should be assessed in Missouri as part of its taxable wealth.

In this connection the language of the Supreme Court of Kansas is apposite. In the case of Wilcox v. Ellis, 14 Kan. 602, a case in which it was sought to tax notes belonging to a resident of Kansas but which were never there, and which were secured on real estate in Illinois, it was said: “Then what is there in Kansas to be taxed? Certainly no tangible property; and not even any intangible property that needs any protection from our laws. Everything is and has been in Illinois — the consideration for the notes, the notes themselves, the place of payment, the persons to whom the notes are to be paid, and presumptively the payors, and the funds which must be used in paying the notes, all are in Illinois and have never been in Kansas. Nothing pertaining to the notes, or to the debt which they evidence, has ever been in Kansas except that the owner of the notes resides in Kansas. Every act which brought the notes or the debt into existence was performed in Illinois, and every act that may be performed in the future for their collection, payment, or extinguishment, must also be performed there. . . . Now as the State of Illinois and not Kansas must furnish the plaintiff with all the remedies that he may have for the enforcement of all his rights connected with said notes, debt, etc., it would seem more just, if said debt is to be taxed at all, that the State of Illinois and not Kansas should tax it, and that we should not resort to legal fictions to give the State of Kansas the right to tax it.”

But we have been led a little to one side by way of comment. Returning now to a consideration of the state of our own revenue law at the time the Legislature enacted section 11,337 and amended 11,348, we find that in 1879 this court decided the case of State ex rel. v. County Court of Howard County, 69 Mo. 454. Dunnica’s wife owned 22 Howard county bonds of the value of $17,600. The Dunnicas resided in Howard county, the- bonds were issued by that county, but they had been sent to New York merely for safe-keeping in the vaults of a safe-deposit company, and not to avoid taxation. They were in New York at the time of the assessment in August, 1875. The assessor listed them as part of that county’s taxable wealth. The board of equalization sustained that officer. Thereat a writ of certiorari was sued out, but the circuit court quashed the writ. On an appeal to this court, we held the bonds exempt from taxation. After discussing a case in 15 Wall. 323, and the Taylor case and the Perry Company case, supra, we took up the form of the oath required of the citizen assessed. The oath then required contained, in every essential particular, the clause heretofore quoted from our present section 11,351 — that is, affiant was put to his oath that he had not sent or taken any property, bills, bonds or notes or other securities out of this State to avoid taxation. That oath (absent a clear and-specific statute making the domicile of the owner the situs of all his notes for local taxing purposes) was interpreted to mean by implication that where such property had been sent out of this State for bona fide purposes and not to avoid taxation, it is exempt.

On that opinion going down, see what followed. At the very first session of the Legislature after the Dunnica ease was decided, it undertook to remedy a mischief lurking in our revenue scheme and which sprung to light by that decision. In that case the debt was created in Missouri, was due in Missouri, the bonds had been issued here, the debtor and creditor both resided here, the remedies and rights of the creditor were each and all vouchsafed and secured to him by the laws of Missouri, and yet the bonds were split from the trunk of our taxable wealth and Dunniea was relieved from the burden of paying tribute to the government thus protecting them and his rights thereto— all this by the mere incident of sending them to New York for safe-keeping from fire and thieves.

It is interesting to observe how the Legislature undertook to give a remedy and strike down that mischief. It, singularly enough, left the oath of the citizen standing in full force and vigor despite our interpretation of it in the Dunniea case. Four days later it passed an act strictly in pari materia, in effect, making the situs of certain intangible wealth the domicile of its owner for taxing purposes. Those two acts must be construed together and reconciled if possible. After full consideration I conclude that, so construed, they mean that the citizen should make oath he has sent none of his property away to avoid taxation (section 11,351). But if he has sent it away for that purpose, or for any other purpose, and it is “held” there, it is still taxable here.' This, because: under section 11,337, the domicile of the owner becomes and remains the situs of such sent-away property for the purpose of local governmental tribute. Mark, the section does not say that all notes and bonds shall be taxable at the residence of the owner, but only those “made taxable by the laws of this State.” That phrase clearly points to the whole body of the revenue law and we must go to that law, to the policy of that law and to our interpretation of it to get at is meaning, doing there we see no certain assurance that the lawmaker intended to tax the intangible wealth of a resident never actually in this State.

The conclusion announced is consonant with the justice of the thing. It makes property, situated as was the Dunniea bonds, taxable at the residence of the owner in Missouri, thereby discerning the mischief disclosed by that case and providing a remedy. It makes outside intangible property, never in Missouri, therefore never sent away, non-taxable here. It preserves intact the philosophy of taxation, which is that the protection of the law of the locality gives the right to tax the property, and that where that protection in nowise exists the right to tax fails.

While the exposition of our revenue laws, in the particulars now up; is not without great difficulty, yet we have been unable to discover any disposition on the part of the Legislature to send all the prior learning in this State on the question in hand to the dust-heap, and wholly alter a public policy long existing. It will be time enough to tax the intangible wealth of our residents in Timbuktu, Pekin or Alaska, and never within our territorial boundaries, when the lawmaker says so in words admitting of no other construction.

It results that plaintiff was entitled to full relief.

Apposite to the conclusion reached, and apparently much fortifying it, is the reasoning of two late cases. Mindful of the mot of Bacon that fresh justice is ever the sweetest and confessing a doubt on the soundness of my own interpretation, springing from the fact that our revenue statutes hold discordant provisions and need careful and scientific revision, I may be allowed to quote from and comment liberally on those cases.

In State ex rel. v. Brinkop, President of the Board of Assessors, and Koeln, collector (a case in Banc, not yet reported), certain items were added to the assessment list of the American Cent. Ins. Co., a home corporation, in order to ascertain the value of its capital stock for taxing purposes. Among them was one of $328,696.38 representing premiums due on policies outside of this State and payable outside the State; another was a bank deposit kept by the insurance company in a bank outside this State, in good faith, with no intention of avoiding the taxation thereof in Missouri. One of the questions in the Brinkop case was the validity of those forced additions to snch list. It will be illuminating to note the views of this court in Banc in so late a case on the disposition of those items.

There is a legal maxim: “Movables follow the person” (Mobilia sequuntur personam). That maxim is sometimes loosely expressed in the phrase, the situs of personal property is the domicile of the owner. Broom (Br., Leg. Max., 8 Ed., p. -399) deals with that maxim as one of the rules relating (not to taxation, but) to the descent and distribution of property. Thereto Story agrees. [St., Conf. of L. (8 Ed.), sec. 379, and ante.]

In this the Brinkop case agrees, witness: “Mobilia sequuntur personam is a maxim of international law and is applied chiefly, if not exclusively, to the distribution of an intestate’s estate; it has never been applied in this State to the requiring of a resident to list for taxation personal property owned by him located in another State, not because the property is liable to taxation in the other State, but because it is not liable to taxation in this State. • If the property were liable to taxation here and if the State should see fit.to tax it, the taxation here would not be double taxation in the sense that we have above used that term, because, this State is not chargeable with the consequences of taxes levied in another State. Since therefore the property located in another State is not directly taxable here, or at least is not included in the property rendered liable to taxation by our statutes, the question arises, was it the intention of our Legislature to levy indirectly a tax on it in the guise of taxing the shares of stock in the corporation, which owns the property?”

Observe, the Brinkop case deals with taxing cor: porations and.while there are some peculiarities in the method of -assessing and taxing corporations, yet it is pointed out therein that the principle of uniformity in taxing the property of individuals and corporations is maintained in our statutes, and it will be seen that the Brinkop case proceeds on the theory that our statutes do not require individuals to list debts due them in another State. On that point the case speaks in no uncertain voice. It says the corporation must be dealt with as fairly as the individual, and since he pays no tax on outside property the corporation stands acquit. Therewith accord the following excerpts: “But would they [corporations] in such case be required to include in their return property not in this State? If so, then an individual would be required to do the same, for the language above quoted from section 11,415 is not limited to corporations, but applies to individuals as well, and besides, section 7098, Revised Statutes 19Q91, in reference to insurance companies requires that their property ‘shall be assessed and taxed as the property of individuals.’ . . . And it would also be unwise and unjust discrimination to make corporations pay taxes, either directly or indirectly, on their property outside the State when individuals are° not so required. Missouri has within its own borders vast wealth in property on which the tax collector can lay his hands and it has no occasion to reach out and gather taxes on property which is not under its protection. To take into account, in assessing the value of the shares of stock in this insurance company, property owned by the corporation outside of this State, would be equivalent in effect to requiring the shareholders to pay taxes on such property; onr statutes do not authorize such taxation. We hold that the bank deposits and accruing premiums outside this State mentioned in relators’ petition are not to be taken into account in assessing the value of the shares of stock. What we have said in this connection is intended to apply to the facts of this ease wherein it is admitted that the corporation has acted in good faith and has not pnt any of its property outside this State to avoid taxation.”

So, in the late case of State ex rel. v. Lesser (in Banc and reported in 237 Mo. 310), our present revenue statutes were reviewed in the light of former* statutes. In that case it was said: “The sovereign power of the State to require its citizens to pay taxes on all their personal property, or on what they own representing their interests in personal property, within of without the State, may, for the purposes of this case, he conceded. But conceding that the. State has the power to tax such interests it does not follow that such interests are taxed unless the law so declares. It is not left to the tax assessor or tax collector to say what property or what interests in property are to he taxed. ’ ’

Referring to section 11,348 of our present statutes, relating to the list to be furnished the taxpayer by the assessor, we said this in the Lesser case: “Section 11,348 requires the assessor to furnish the person to be assessed a printed or written blank, prepared for that purpose, containing a list of all the kinds of personal property that he is to return for taxation.' The statute has carefully enumerated all things on which the tax is to be levied, and the- list is designed to be so explicit that every taxpayer may understand what is required of him. The taxpayer is required to fill out the blank showing how much if any of each item specified he owns, and the list so made out is to be signed and sworn to by him, and if it is false he is liable to the pains and penalties of perjury. No one can read that section of the statute without being impressed with the thought that it was the purpose of the lawmaker to make the duty of the taxpayer in rendering his list for taxation so plain that one could neither honestly escape making a list of all his property called for, or be unconsciously led into making a false return and a false oath.”

Speaking to section 11,519, Revised Statutes 1909, which, defines property and personal property in a comprehensive way, we said this in the Lesser case: “If the General Assembly had intended by that definition to say that the taxpayer should list for taxation not only his property in this State, including the items specified in section 11,348, but also every thing else on the face of the earth in which he had any interest, either within or without the State, it would require him to list not only the personal property, but also the real estate outside the State, which he might own or have an interest in. The reasonable construction of that clause of the statute is that it was intended to mean property in this State. That intention also appears in the definition in that section given the term ‘personal property.’ The definition is very comprehensive, and specifies stocks and bonds and many other things tangible and intangible, but it nowhere says of any of the items mentioned that they are included whether in this State qr elsewhere, until it comes to ‘ships, vessels, or other boats,’ and of them it says, whether ‘within the jurisdiction of this State or elsewhere.’ If it was intended to mean that all the personal property enumerated or interest therein, here or elsewhere, was included, why did it specify boats here or elsewhere? The distinction in this particular drawn between steamboats and other properties shows that the Legislature intended, except as to steamboats, etc., to include only property or interests within this State.

“Appellant refers also to section 11,334, Revised Statutes 1909: ‘For the support of the government of the State, the payment of the public debt, and the advancement of the public interest, taxes shall be levied on all property, real and personal, except as stated in the next section.’ The next section relates only to' property exempt from taxation by the Constitution. Here again we have the general térm ‘all property, real and personal,’ and there is in that section no more authority for saying that it includes personal property outside of the State than that it includes real estate beyond our borders; if it includes one it includes both.”

Again, further along we said: “This State has always maintained a high standard of public policy and has never attempted to reach beyond its borders to gather revenue from property not under its protection.”

Referring to the list furnished by the assessor (Sec. 11,348) and to the oath required to that list (Sec. 11,350), we said this: “The plan of giving the taxpayer no specifications to guide him in making out his list to be returned to the assessor, which was adopted in 1866, after being tested for ten years or more, was found to be unsatisfactory, at least it is to be so inferred, because in 1877 the General Assembly abandoned that plan and adopted the plan now in use furnishing the taxpayer with a full list of items to guide him in making his return under oath and under penalties, and if we should now construe the law to be that he was not only required to make his return of the items specified on that list, but also to go to section 11,519 and figure out if he could, or at his peril if he could not, what else was required to be listed under the broad definition of property and personal property in that section given, we are satisfied we should do violence to the meaning of the statute.”

It is thus put beyond all question that the reasoning of the Brinkop and Lesser cases is that a corporation is not required by our statutes to pay taxes on its evidences of debt outside this State, because the individual is not so required. For us to now hold the individual is so required is to explode the assumption on which the reasoning of those cases rests — it is to plow up the very foundation of those cases.

Moreover, the yoke of taxation should rest evenly on the necks of all residents — those natural persons having bodies and souls and those artificial entities having neither. Hence we are loth to write the law to he that in Missouri the man pays taxes on his outside choses in action, whilst the domestic corporation stands acquit. Why should we do so unseemly and unjust a thing?

^The judgment is reversed and the cause remanded ■with directions that the full relief prayed for in plaintiff’s hill he decreed him.

All concur.


text:
    EUNICE T. HALSEY, Appellant, v. JENNIE C. THRAILKILL et al.
    Division One,
    November 29, 1911.
    1. LACHES: Deference to° Trial Court. As to the defense of laches, dependent upon plaintiff’s notice of the pendency of the suit which resulted in a judgment establishing a special lien for taxbills on the property of which he was in possession, the Supreme Court will defer somewhat to the finding of the chancellor that defendant had no notice, unless the finding is against the great weight of the evidence.
    2. JUDGMENT ON SPECIAL TAXBILL: No Notice: Redemption. The owner of property who was without notice of a suit pending to foreclose the lien of a special 'taxbill is entitled to redeem the lots from the sale made by the sheriff under the judgment of foreclosure.
    3. JUDGMENT ON SPECIAL TAXBILL: Right to Redeem: Persons not Parties. A judgment foreclosing the lien of a special taxbill issued in payment of a street improvement by a city of the second class does not affect the interests or title of any person not made a party to the suit; and the owner not made a party, whether he be the legal or equitable owner, has tha right to redeem the property after sale. The statute (Sec. 5664, R. S. 1909), which is a part of the charter of cities of the second’class, is applicable to the owner of either the legal or equitable title alike.

      Appeal from Buchanan Circuit Court. — Him. C. A. Mosmcm, Judge.
    Affirmed.

      Charles F. Strop and Eugene Silverman for appellant.
    (1) Respondent has no standing in a court of equity and is not entitled to the relief granted. The evidence shows that he was in possession of all the facts which should have moved him to action, that he has been guilty of laches and was speculating upon the litigation of others. Bispham on Equity, sec. 39: Bliss v. Pritchard, 67 Mo. 187; Smith v. Washington, 11 Mo. App. 525; Hatcher v. Hatcher, 139 Mo. 626. (2) The inadequacy of price in this case is not sufficient ground for the judgment. The inadequacy is not; so gross as to shock the conscience of the chancellor. Knoop v. Kelsey, 121 Mo. 642; Hammond v. Scott, 12 Mo. 8; Meir v. Zelle, 31 Mo. 332; Parker v. Railroad, 44 Mo. 422; Phillips v. Stewart/59 Mo. 492; Martin v. Castle, 193 Mo. 183. (3) R. S. 1909', sec. 9049, has no application. Special taxbills are issued in the exercise of the taxing power of the State and the action need be only against the record owner. The statute does not include equitable interests not appearing of record. Such interests are concluded by the judgment against the holder of the record title. R. S. 1909, sec. 9049; Payne v. Lott, 90’ Mo. 676; Yance v. Corrigan, 78 Mo. 94; State ex rel. v. Sack, 79 Mo. 661; Watt v. Donnell, 80 Mo. 195; Cowell v. Gray, 85 Mo. 169; Simonson v. Dolan, 114 Mo. 176; Allen v. Ray, 96 Mo. 546; Hilton v. Smith, 136 Mo. 449.

      Culver, Phillip & Spencer for respondents.
    (1) Respondent had the right, to redeem under the express terms of the statute giving him the right to redeem (under the admitted facts in this case), from a sale of his property under a judgment foreclosing the lien of a taxbill issued by a city of the second class: E. S. 1899, sec. 5664. It is too plain for argument that the facts in this case bring it squarely within the provisions of this statute. (2) Eegardless of'the statute respondent was entitled in equity to redeem the property from the sale. It is conceded that the property was sold for $364, and it is undisputed, and the court found, that the property was actually worth $4,000, so that it was sold for less than one-tenth of its value. While mere inadequacy of price alone is not sufficient to justify the chancellor in setting aside a judicial sale, yet if the inadequacy is so gross as to shock the conscience of the chancellor, especially where there is the slightest circumstance connected with the-sale to show that the sale was unfairly or improvidently made, the owner of the property is entitled to redeem in equity. Drey v. Doyle, 99 Mo. 459; Wiggenhorn v. Daniels, 149 Mo. 160; Freeman v. Moffit't, 119 Mo. 280; 24 Cyc. 39. (3) It is intimated by appellant that respondent lost his right to redeem because he was not vigilant; that he had “a full opportunity to be present at said sale and protect the property if he so desired”; that “he paid no attention to any of the proceedings; made no inquiry of any kind; and did not attend the sale.” The answer is that he paid no attention to the sale because he never knew that his property was to be sold. He paid no attention to the proceedings because he knew of no proceedings. The undisputed testimony is, and the court found, that he was absolutely ignorant that the suit had been brought, that any judgment had been rendered, or that the sale had been made.
   WOODSON, J.

Originally this was a suit in ejectment, instituted by Halsey, the appellant, against John P. Emmert and his tenant Thrailkill, respondents, in the circuit court of Buchanan county, to recover lots five and six in block nine, Widman’s Addition to the city of St. Joseph, Missouri. The petition was in conventional form; and the answer alleged that prior to 1901 the Widman Investment Company was the owner of the property described in the petition, and that on December 26, 1901,' said Investment Company contracted to sell said lots to one Porter A. Thompson, which contract was, on the same day, assigned by said Thompson to the respondent Emmert; that afterwards, but before respondent received a deed for said property, special taxbills for street improvements in front of said property, were issued by the city of St. Joseph against said lots, and suit was instituted for their collection; that at the time of the institution of said suit, the Investment Company was the record owner of said real estate and was made a party defendant in said suit with one Y. W. Emmert, but neither of the respondents were made parties thereto; that said action was prosecuted to final judgment; that a special execution issued thereon, and a sale thereunder was made by the sheriff to Halsey, the appellant, and a sheriff’s deed was duly executed by him to her. The answer further alleged that the property sold was worth $4,000, and that it was sold for only $364, less than one-tenth of its actual value, and prayed that the respondent be permitted to redeem from the sale, by paying the amounts of the judgment, interest and costs.

A trial was had before the court without the intervention of a jury, which resulted ■ in a decree in favor of the defendants, the respondents here, authorizing a redemption, as prayed in the answer. After moving unsuccessfully for a new trial, the plaintiff duly appealed the cause to this court.

At the request of counsel, the circuit court made a special finding of facts. Formal parts omitted, those findings were as follows:

“1. Prior to the 25th day of December, 1901, the Widman Investment Company was the absolute owner of record of lots 5 and'6, in block 9, in Widman’s Addition to South St. Joseph, in Buchanan county, Missouri.
“2. On June 30, 1904, one F. S. Cushing instituted suit in the circuit court of Buchanan county, to foreclose the lien of certain taxbills issued to one P. E. Halsey and assigned to him in June, 1902, for the paving and grading of King Hill avenue, on which street said property abutted. The only defendants in said suit were the Widman Investment Company and' V. W. Emmert, the father of the defendant, John P. Emmert; that suit was prosecuted to judgment, the defendants failing to appear, and on the 14th day of November, 1904, a judgment was rendered in said suit against lot 5 aforesaid, and all the right, title and interest of V. W. Emmert and Widman Investment Company in and 'to said lot five for the sum of $135.57 for debt and interest, at the rate of eight per cent per annum from November 14, 1904, and one-half of cost of said action taxed at $10.75, which said debt, interest and cost were declared to be a lien and charge upon said lot five; and also against lot six aforesaid and against all the right, title and interest of V. W. Emmert and Widman Investment Company in and to said lot six for the sum of $131.58 for debt and interest at the rate of eight per cent per annum from November 14th, 1904, and, one-half of the cost of said suit amounting to $10.75, which said interest and cost were declared to be a lien and charge upon said above described real estate, and which said judgment further ordered and directed that said respective lots and all of the right, title and interest of the parties therein should be separately sold for the purpose of satisfying the respective sums found, to be due against each, together with costs, and that a special execution issue accordingly.
“3. That on the 31st day of May, 1907, the clerk of the circuit court of Buchanan county, Missouri, issued a special execution on said judgment, directed to the sheriff of Buchanan county, Missouri, containing the ordinary recitations regarding such judgments, and commanding him to sell the property, etc.
“4. That the sheriff of Buchanan county, Missouri, made return on said special execution as follows: ‘Executed the within writ in the county of Buchanan and State of Missouri, on the 31st day of May, 1907, by levying upon and seizing the within •described real estate. James M. Sampson, Sheriff;’ and also made report of the sale under said special execution as follows: [Then follows a report of the sale in the usual form.]
. ‘ ‘ 5. That prior to the time said sheriff made the sale referred to in said report, he gave notice of said sale in the St. Joseph Daily Courier, which said notice is as follows: [Then follows the ordinary notice of sale, and proof of its publication.]
“That at said sale Eunice T. Halsey became the purchaser of said property and received the sheriff’s deed therefor, which was introduced in evidence; that she paid for both of said lots the sum of $364; that the value of said property at that time was' $4,000. ”
“6. That said sheriff’s deed recited that: [Then follows the sheriff’s deed in conventional form, with the usual recitals; which was duly recorded July 15th, 1907, in the office of the recorder of deeds.]
“7. On the 26th day of December, 1901, the Widman Investment Company, by contract in writing, signed by it, sold and agreed to convey to Porter A. Thompson the lots above mentioned (and other lots described in the contract) for the consideration mentioned in the contract, $200' of which was paid in cash and the remainder in monthly payments, as stated therein. Under said contract the said Thompson was to have possession of said property and upon payment of the purchase price was to receive a deed from said Widman Investment Company.
“8. On the same day, the said Porter A. Thompson made and entered into a written agreement, introduced in evidence, with the'defendant John P. Emmert, with the written consent and authority of the Widman Investment Company, wherein and whereby the said Thompson sold and agreed to convey to the defendant, John P. Emmert, lots five and six, aforesaid, for the sum of $750, $100 of which was paid in cash at the time and the remainder to be paid at the rate of $20 per month, beginning on the 26th day of January, 1902, which said contract also provided that the defendant J. P. Emmert should from the date thereof have possession of said property and should be entitled to and did thereafter when said payments were made.
“9. That the defendant, John P. Emmert, took possession of said lots at said time and made all the payments called for in said contract to Porter A. Thompson, who turned the money over to the Widman Investment Company, and the Widman Investment Company, pursuant to said contract, made a deed to said lots directly to said defendant, John P. Emmert, which was introduced in evidence, on the 8th day of September, 1904, and which was recorded in the office of the recorder of deeds on the 21st day of September, 1904.
“10. That at the time the suit hereinabove referred to was instituted by Cushing against the Widman Investment Company and Y. W. Emmert to foreclose the lien of said taxbills, the defendant Emmert had paid all of the monthly payments called for in said contract excepting four, said four last payments having been made after said suit was instituted; and erected an eight-room house costing $3,000 on the lots one year ago.
“11. That at the time said suit was instituted, the defendant John P. Emmert was interested in said lots five and six, had possession of said lots, had paid all of the purchase price thereof excepting four payments of $20 each and the interest on each of said payments and had a valid contract in writing entitling him to a deed for said property upon the payment of ■the remainder of said purchase price.
“12. That the said John P. Emmert was not made a party defendant in said suit to foreclose the lien of said taxbills; that said Y. W. Emmert is the father of the defendant J. P. Emmert, but said Y. W. Emmert had no right, title or interest at any time in or to said property or any part thereof; that the defendant J. P. Emmert had no knowledge of the institution or pendency of said suit, nor of the fact that a judgment had been rendered therein, nor of the fact that the property had been sold by the sheriff or purchased by the plaintiff until he was served with summons in this suit. He did, however, know that special taxbills had issued against these lots and made two payments on ac-. count of the same.
“13. That the amount paid for said property at the sheriff’s sale was less than one-tenth of the actual value of said property at the time.
“14. That Eunice T. Halsey purchased said property at said sale for said Cushing with the understanding that said Cushing should be paid the amount due on said taxbills.”

Then follows the decree of the court, which is quite lengthy, reciting in substance the finding of facts, and authorized the respondents to redeem the lots from the sale, by paying the amount of the judgment, interest and costs.

I. The sole proposition presented by this record for determination is the right of respondent John P. Emmert to redeem lots five and six in block nine, Widman’s Addition to the city of St. Joseph, Missouri, from a sale made by the sheriff under a special execution founded upon a judgment of the circuit court foreclosing the lien of the taxbills, described in the pleadings, issued against said lots by said city, a city of the second class, for paving the street on which said lots abut. Counsel for appellant deny that right, while counsel for respondents affirm its existence.

The first position of counsel for appellant is, that respondent has no standing in a court of equity and is not entitled to the relief granted by the trial court. This contention is predicated upon the idea.that the evidence shows respondent was in the possession of the property, and knew all the facts that should have moved him to action during the pendency of the suit against V. W. Emmert and the Widman Investment Company to foreclose the lien of the special taxbills, and having failed to move in that regard he is guilty of such laches as should bar his right to be now heard.

. The question of laches was one of the principal questions that was' presented to the trial court for determination; and while there was evidence introduced from which the court might have been justified in finding that he was thus guilty, however, there was upon the other hand evidence, equally as strong, if not stronger, which showed respondent had no notice whatever of the pendency of that suit. Upon that evidence, the court found for the respondent.

The court had the witnesses before it, heard them testify, and observed their demeanor upon the witness stand, which gave to it a better opportunity to weigh the evidence and pass upon their credibility than we have. Under those conditions we have repeatedly held that this court will defer somewhat to the finding of the trial court, and will not disturb the judgment on that account without the conclusions there reached are against the great weight of the evidence. [Huffman v. Huffman, 217 Mo. 182.] In fact, that case goes much further in supporting1 the findings of the trial •court than I ever knew the law to be, but independent of that case, the law in this State Is well settled to be as before stated. That being true, we must rule this contention against appellant.

Having disposed of the question of lack of notice on the part of respondent of the pendency of the suit to foreclose the lien of the taxbills, it must follow, from the facts of this .case as found by the court, that respondent was entitled to redeem said lots from the sale made by the sheriff under the judgment foreclos1ing the tax lien, and consequently we hold that the decree of the court granting to respondents that right was proper, and free from error.

II. There is an additional reason why the decree of the court granting to respondent the right to redeem said lots from said sale, should be affirmed, and that is this, the charter of the city of St. Joseph, after prescribing the method of enforcing taxbills by suit, provides: “All such, or any of the owners of the land charged, or of any interest or estate therein, may be made defendants, but only the right, title, interest and estate of the parties made defendants in any suit shall be affected or bound thereby' or by the proceedings therein. . . . Any such special judgment shall bind all the right, title, interest and estate in the land that defendants, and each of them, owned at the time the lien of the taxbill commenced, or acquired afterward, and a sale on execution thereon shall vest all of, such right, title, interest and estate in the purchaser, and discharge the lands from any liens or incumbrances thereon; but parties interested in the land, not made defendants, shall not be affected thereby, and if they claim through or under any parties defendant, prior to suit brought, may redeem from the purchaser, or otherwise assert their rights, according to equity and good conscience.” [R. S. 1899, sec. 5664.]

Counsel for appellant insist that this provision of the charter has no application to the case* at bar, and cite in support of that insistence, the following cases: Payne v. Lott, 90 Mo. 676; Vance v. Corrigan, 78 Mo. 94; State ex rel. v. Sack, 79 Mo. 661; Watt v. Donnell, 80 Mo. 195; Cowell v. Gray, 85 Mo. 169; Simonson v. Dolan, 114 Mo. 176; Allen v. Ray, 96 Mo. 546 Hilton v. Smith, 134 Mo. 499.

After a careful examination of each and all of these cases, we find that none of them related to lands situate in a- city of the second class, to which the city of St. Joseph belongs, but relate to land lying in the country, or in some city or town which is governed by some statute or charter provision particularly applicable thereto, and wholly different from the charter provision of the city of St. Joseph before set out.

The case at bar comes not only within the spirit of this charter provision, but within the letter of it also. The record discloses the facts that at the time of the institution of the suit to enforce the taxbills mentioned, the respondent owned the equitable title to the lots in dispute, and that he obtained that title prior to the institution of the suit from a party who was made a defendant in said action, namely, The Widman Investment Company, and the respondent was not made a party to the suit brought to foreclose the lien of the taxbills. By reading said charter provision it will be seen that the facts lastly stated are precisely the same as those mentioned in said charter provision, which authorize a redemption.

If I correctly understand counsel for appellant, they do not controvert the correctness of the conclusion just stated, if it was the design of the Legislature to make said charter provision applicable to the owners of the equitable title to real estate. There can be no doubt in our opinion but what it was the intention of the Legislature to include in said provision, the owners of the legal, as well as the owners of the equitable title to real estate. In the first place, the provision Itself does not so limit its operation to the owners of the legal title, and this court has no right or authority to write that limitation into it.

Moreover, it would seem almost incredible to believe that the Legislature would by special charter provision • authorize a redemption by the owners from a sale of the legal title, a mere worthless shell, and deny one the right to redeem from the sale of the equitable title, the real beneficial and valuable interest in real estate.

We are therefore of the opinion that the judgment of the circuit court should be affirmed, and it is so ordered.

III. Counsel for appellant also insists that the indignancy of consideration paid for the lots at the sheriff’s sale is not sufficient to authorize a redemption from that sale on the part of the respondents. Counsel for respondents do not seem to make that contention; but do insist that that fact, when taken in connection with certain other facts and -irregularities pointed out in their brief, is sufficient to authorize such redemption.

Since the conclusions reached in paragraphs one and two fully dispose of the case, we deem it unnecessary to pass upon this insistence.

All concur.


author: BROWN, C. PER CURIAM.

text:
    HARTLEY A. McCOY, Appellant, v. LAURA E. WITTEN.
    Division One,
    November 29, 1911.
    1. NEW TRIAL: Order: Grounds. The requirement of Sec. 2023, R. S. 1909, that the trial court shall specify of record the ground or grounds on which a new trial is granted, places a duty primarily upon that court which is not made to depend upon the action of the parties. like every other law, it should he obeyed.
    2. EJECTMENT: New Trial: Appeal. In ejectment, where the damages allowed are nominal only, and nothing is adjudged for rents and profits, the only question presented to this court upon an appeal from an order granting defendant a new trial, is whether the pleadings and evidence introduced required as a matter of law that the verdict should be for the plaintiff for the possession of the land sued for.
    3. -: Title: Adverse Possession. Ejectment for a strip of land off the east side of lot 3. The defendant, who is the owner of the next lot on the east, lot 2, claims the strip by adverse possession under the Statute of Limitations. The addition containing these lots was surveyed in 1890; there is no evidence that their lines were indicated by monuments1 at that time, and the plat in evidence contains no reference to such features. The strip in question is included in lot 3 as marked and shown on the plat and by the notes of the survey. For about a year, beginning April 16, 1903, a third person was the owner, by a perfect title, of both lots 2 and 3. There is no pretense that the deeds under which he claimed contained any other description, or referred to any other- means of identification, than the numbers which the lots bore upon the plat of the addition, which furnished the basis for the description. This third person in 1904 conveyed to the plaintiff and defendant respectively by warranty deeds containing only the same description, and they took possession under their deeds and not otherwise. Since these deeds were made in 1904, the Statute of Limitations had not run against this suit at the time of its institution, and the plaintiff must recover.
    Appeal from Randolph Circuit Court. — Ho». Wm. H. Martin, Special Judge.
    Reversed and remanded (%oiti% directions).

      M. J. Lilly for appellant.
    (1) The conr't erred in sustaining defendant’s motion for a new trial. In no view of the evidence in this case could a verdict for the defendant he sustained, and the ruling of the trial court in granting-defendant a new trial should be reversed for that reason. TIomuth°v. Railroad, 129 Mo. 642; Fitzjohn v. Railroad, 183 Mo. 74; Ordelheide v. Berger Land Co., ■ 208 Mo. 239. (2) The evidence shows that plaintiff held the record title to the land in controversy by an unbroken chain from the government down to himself, and the defense of adverse possession for the statutory period of ten years fails because the plaintiff and defendant acquired their respective adjoining lots from a common grantor within less than ten years next before the filing of this suit and one cannot hold adversely to himself. (3:) Under the documentary proof in evidence there was not and could not have been a period of ten consecutive years prior to the institution of this suit of adverse possession of the land in controversy as between the record owners of lots two and three, block one of James Trimble’s addition to the city of Moberly, Missouri.

      A. G. Gladney and Willard P. Gave for respondent. .
    (1) The trial court has a .discretion to grant one new trial and the appellate court will not interfere with its exercise of that discretion, unless the case is such that no verdict in favor of the party to whom the new trial is.granted could ever be allowed to stand. R. S. 1909, sec. 2022; Taylor v. Railroad, 163 Mo. 183; Casey v. Transit Co., 186 Mo. 229; Fitzj.ohn v. Transit Co., 183 Mo. 74; Hoepper v. Hotel Co., 142 Mo. 387. (2) The evidence shows that neither plaintiff nor anyone else claiming through or under Nitzsche, since the year 1876 or 1877 has ever been in possession of said strip in controversy. (3) The evidence shows that Petering began to hold this strip in controversy adversely to Nitzsche, the owner of lot three from the year 1876 or 1877, when Nitzsche bnilt. the fence separating lots two and three. This adverse possession of-Petering had ripened into a title by adverse possession prior to O’Neal’s death, and the' devisees of O’Neal took this disputed strip by reason of this paramount title. Shaw v. Nicholay, 30' Mo. 99. (4) The devisees of J. T. O’Neal took a fee simple title to the strip in controversy. The possession of said Petering and that of O’Neal, being under claim of ownership, had ripened into a title; and the fact that Mrs. Cora O’Neal Greer was one of the devisees, does not matter, since where there are two-titles in one person, the possession will connect itself with the paramount title. Shaw v. Nicholay, 30 Mo. 110.
   BROWN, C.

Ejectment to recover a rectilinear strip of land off the east side of lot three in block one of James Trimble’s Addition to Moberly, four and one-half feet wide along Coates street on the north, and three and one-half feet wide at the south end. The answer is a general denial and plea of the Statute of Limitations. No question was raised at the trial as to the paper title of the plaintiff, and the only issue-attempted to be made by the evidence, was whether or not the defendant had acquired title to the strip in question by adverse possession.

The evidence, so far as it relates to the questions, which we will consider, discloses the following unquestioned conditions. James Trimble’s Addition was surveyed in 1890, block one containing eight lots, all fronting north on Coates street, and numbered consecutively from east to west, lot one being fifty feet wide, and lots two and three being each forty-seven feet wide. There is no evidence that the lines or corners of lots two and three were, at the time of the survey, marked or indicated by monuments, either natural or artificial, and the plat in evidence contains no reference to any such features, but simply shows the external lines and measurements of the lots composing the addition. Lot two was acquired by one Petering by warranty deed in 1873. August Nitzsche acquired lot three in the same manner in 1872. There is no evidence that either of these deeds, nor any other deed in the chain of title of either of the parties, contained any other description showing their boundaries than the number of the lot and block, and name of the addition, with the city and county in which it wás situated; and no question has been raised, either in evidence or argument, as to the fact that the strip of land suéd for is included in lot three, as marked and shown on the plat, and by the notes of the survey.

The' testimony shows that in 1876 or 1877’Mr. Nitzsche built a house on his lot, and directed a fence to be built along his east line, which was, in fact, placed on the west line of the strip of land described in the petition. There is no evidence that Mr. Petering, during his ownership of lot two, which he conveyed to J. T. O’Neal, March 20, 1879', did anything on it. Mr. O’Neal, after he acquired the lot, built a water closet on the back end of it extending across the strip in controversy to within a few inches of Mr. Nitzsche’s fence, and connected the closet with a sewer. At what period during Mr. O’Neal’s ownership this closet was built, is not disclosed more definitely than that it was while Mr. Nitzsche owned lot three, which he conveyed June 15, 1885, to Mrs. Cora O’Neal, the wife of J. T. O’Neal, the owner of lot two. The titles remained in this condition until April 1G, 1903, at which date the widow and heirs of Mr. O’Neal (who died in August, 1887) conveyed lot two to Mr. Robert O. McCanne; and Mrs. O’Neal, who had in the meantime been tbe wife of one Greer, conveyed lot three to the same grantee.

Mr. McCanne on March 4, 1904, conveyed lot two by warranty deed to Mrs. Witten, the defendant, and on May 4, 1904, conveyed lot three by warranty deed to plaintiff. At the trial there was a verdict and judgment for the plaintiff. A motion for a new trial was filed in due time and sustained by the court. It is the order of the court sustaining this motion, and granting a new trial, from which this appeal is taken.

The circuit court, in entering its order granting a new trial, has disregarded that provision of section 2023, Revised Statutes 19091, requiring .that in every such case it shall specify of record the ground or grounds on which the new trial is granted. This is a duty which rests primarily upon the court and is not made to depend upon the action of the parties or either of them. One of its objects is to lighten the labor of the appellate court, by directing its attention to the exact point presented for decision, and like every other law it should be obeyed.

The only question presented by ■ this appeal, is whether the pleadings and evidence introduced require, as a matter of law, that the verdict should be for the plaintiff for the possession of the land sued for, the damages allowed being nominal only, and there being nothing adjudged for rents and profits.

The question tried below, and argued here, is whether or not the defendant, at the time the suit was brought, had acquired title to the strip of land in dispute by adverse possession for the time required by the Statute of Limitations. The evidence shows conclusively, and it seems to be admitted by both parties, that for about a year, beginning April 16, 1903, one McCanne was the owner, by a perfect title, of both lots two and three. There is .no pretense that the deeds under which he held contained any other description, or referred to any other means of identification, than the numbers which they bore upon the plat of the addition, which furnished the basis for the description. He conveyed them to the plaintiff and defendant, respectively, by warranty deeds containing only the same description.

It can make no difference how McCanne and his predecessors in title acquired these lots, or any part of them — whether by deed or by adverse possession or otherwise. He owned them both, and, by his respective deeds, conveyed one of them to the plaintiff and the other to the defendant, who took possession under their deeds and not otherwise. No question of estoppel or agreed description has been made in argument, or suggested, so far as we can see, by the •evidence.

The deeds under which the parties to this suit claim having been made in 1904, it is plain that the Statute of Limitations had not run against this suit at the time of its institution.

The exact question here decided was before this court in Patton v. Smith, 171 Mo. 231, and was decided in accordance with the law as we have here stated it, and we see no reason for dissatisfaction with the decision in that case. The order of the circuit court sustaining the motion for a new trial is accordingly reversed and the cause remanded with directions that the motion be overruled.

Blair, C., concurs.

PER CURIAM.

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

All the judges concur.


text:
    J. T. FERGUSON, Appellant, v. GEORGE C. ORCHARD and LEANDER F. NICKEY.
    Division One,
    November 29, 1911.
    1. MOTION FOR NEW TRIAL: Must be Shown by Record: Appeal. The record proper must affirmatively'show that a motion for a new trial was filed within four days after the rendition of the judgment or decree appealed from, and also the action of the court thereon.
    2. -: -: Shown by Motion Itself. Judgment was rendered for plaintiff, cancelling a .note and deed of trust, on June 28, 1899. Thereafter defendants filed a motion for a new trial, and that paper- has stamped upon it: “Filed July 3, 1899. Ed. E. Abington, Circuit Clerk;’’ but no entry was made on the circuit court record showing it was filed. Thereafter nothing more was' seen or heard of the case for seven years; then the attention of the court was called to it, and it was continued from term to term until the trial, at which the motion was sustained, a second trial was had, and a decree entered for defendants. Held, that the motion shows it was not filed within four days after judgment, and there is no record entry showing it was ever filed, and the judgment rendered on June 28, 1899, was in full force and effect; and while so standing, unimpeached, the court had no lawful authority to retry the case.

      Appeal from Butler Circuit Court. — lion. J. G. Sheppard, Judge.
    Reversed and remanded.

      David W. Dili for appellant.
    The record in this case shows that judgment was rendered for the plaintiff on the 28th day of June, 1899, and the record, motion docket, as well as verbal testimony, all show that defendants never filed a motion for a new trial; and that no such motion for a new trial was ever sustained or overruled; and the circuit court was wholly without authority to again try this cause, over the objection of the plaintiff. Stark v. Zehnder, 204 Mo. 449.

      E. R. Lents íot respondents.
    (1) The parties were properly in court, a trial was had, a judgment rendered, a motion for new trial was filed, the case went off the docket, afterward the case was redocketed. By leave of court defendants filed' an amended answer. By leave of court plaintiff filed an application to amend the answer. The case' was twice continued by agreement, and once continued by the court of its own motion. Both parties announced ready for trial, introduced evidence and proceeded to judgment. Under these circumstances it makes no difference whether the motion for a new trial was sustained or not: Both parties and the court treated it as having been sustained. Plaintiff appeared and submitted himself to the jurisdiction of the court and is now estopped to deny the validity of the judgment on that account. Bank v. Armstrong, 92 Mo. 277; G-ilstrap v. Felts, 50' Mo. 431; Emerson v. Harriett, 11 Mo. 413; Helm v. Bassett, 9 Mo. 413. (2) If plaintiff was not satisfied with the order of-the court granting a new trial, he had his remedy by appeal from that order. He did not pursue that remedy, and he cannot now complain of the action of the court in granting the new trial. R. S. 1899, sec. 806; R. S. 1909, sec. 2038. (3) The plaintiff appeared at every step taken in the case from the redocketing of the case at the July term, 1905, down to the final judgment rendered at the October term, 1907. He submitted himself to the jurisdiction of the court and asked a judgment anew. He must either appear at the trial and abide the consequences or not appear. He cannot occupy an ambiguous position, partly appearing and partly not appearing. He will not be permitted to occupy in this regard an ambiguous attitude, nor by the way attempted by this plaintiff, to appear, disappear or reappear, whenever he thinks it advantageous to do so. Such feats of legerdemain, such thimblerig performances better befit another arena, and are not to be tolerated in a court of justice. Tower v. Moore, 52 Mo. 120; Pry v. Railroad, 73 Mo. 128; Kranski v. Railroad, 77 Mo. 368; Barnes v. McMullins, 78 Mo. 277; Smiley v. Cockrell, 92 Mo. 112; Baker v. Railroad, 107 Mo. 239; Bensieck v. Cook, 110 Mo. 182; Myer v. Bristol Hotel Co., 163 Mo. 68.
   WOODSON, J.

The appellant, Ferguson, instituted this suit in the circuit court of Butler county, in 1899, to cancel a certain promissory note for the sum of sixty-eight dollars, and a deed of trust given to secure the same, signed by him and payable to the respondent Nickey. The respondent Orchard was the trustee named in the deed of trust.

Thereafter on June 28th of the same year, a trial was duly had which resulted in a judgment and decree in favor of the appellant, cancelling the note and deed of trust.

The record proper and the motion docket of that court, show that no motion for a new trial was ever filed by tbe defendants, or that any snch motion was ever overruled or sustained. More accurately speaking, said record proper and said motion docket do not show that any of those things was done.

Counsel for the defendants, the respondents here, sought to escape the judgment and decree mentioned by introducing in evidence a paper attached to the files in the case, which was in words and figures as follows:

“In the Circuit Court of Butler county; J. T. Ferguson, Plaintiff, vs. George C. Orchard and L. F. Nickey, Defendants, May Term, A. D. 1899.
“Now come the defendants and move the court to vacate and set aside the judgment heretofore rendered, to-wit, at the present term of this court, and grant a new trial therein, for the following reasons: •
“1. The court erred in finding and rendering judgment for the plaintiff, on the pleadings in the said cause.
“2. The court erred in finding for the plaintiff and rendering judgment for the plaintiff on the evidence heard on the trial of the said cause.
■ “3. On the pleadings and the evidence heard in the said cause the judgment should have been for the defendant.
“R. F. Scott, and
■“L. D. Groves,
“Attorneys for Defendants.”

Which paper has stamped on the back thereof the following words and figures: “Filed July 3, 1899, Ed. L. Abington, Circuit Clerk. ’ ’

But as before stated, there is no record of the filing of a motion to set aside the judgment above mentioned, or grant a new trial and there is no record entry overruling or sustaining such a motion.

Nothing more was seen or heard of the case until April 17, 1906, some seven years afterwards, when the case was again called to the court’s attention, and it was by order of the court continued from term to term, to the October term, 1907, when a second trial was had, over the objections and protests, properly made by counsel for appellant, which resulted in a decree, this time, in favor of the respondents, dismissing the appellant’s bill.

From this latter judgment, after taking the proper intermediate steps, appellant duly appealed the cause to this court.

The errors assigned are as follows: . . .

“5. The court erred in attempting to try this cause after a final decree had been entered for the plaintiff on the 28th day of June, A. D. 1899, which had not been appealed from and no motion for a new trial had been filed within four days after the entering of said decree, and because the record does not show that any motion for a new trial was ever sustained.
“6. The court erred in requiring plaintiff, over his objection, tp try this case again, in view of the facts stated above.
“7. The court erred in its finding of facts.
“8. The court erred in its conclusions of law.
“12 The court erred in overruling plaintiff’s motion for a new trial.”

The record proper must affirmatively show that a motion for a new trial was filed within four days after the rendition of the judgment or decree appealed from; also the action of the court thereon. [Stark v. Zehnder, 204 Mo. l. c. 449.]

In the case at bar, it is conceded, that the record proper discloses no such entries; but counsel for respondent seek to supply those omissions by introducing in evidence a paper, attached to the files, or judgment roll, purporting to be a motion for a new trial, but the record proper does not show that it was ever filed; however, the paper itself bears on the back of it a filing mark of July 3rd, 1899.

Clearly that does not meet with the requirements of the law.

Upon that state of the record, the judgment of the court rendered June 28th, 1899, was in full force and effect; and while so standing, unimpeached, that court had no lawful authority to retry the cause, as it did, on October 24th, 1907. Its conduct in that regard was clearly erroneous, for which we reverse the judgment and remand the cause.

All concur.