author: RylaND, Judge,

text:
    Ranney, Respondent, vs. Brooks & Ervin, Appellants.
    1. A note given to a sheriff for the purchase money of land sold in partition, and showing on its face the consideration for which it was given, cannot he assigned so as to enable the assignee to recover the amount after the expiration of the sheriff’s term of office, against the order of the court requiring it to be paid to the succeeding sheriff.

      Appeal from Cape Girardeau Circuit Court.
    This was an áction upon the following sealed note :
    “Jackson, Mo., May 24th, 1852.
    “Twelvemonths afterdate, we or either of us promise to pay to John P. Edinger, sheriff of Cape Girardeau county, Missouri, the sum of two hundred and seventy dollars, for value received, in the purchase of a tract of land sold to make partition thereof amongst the heirs of Joseph Whitney, deceased. Witness, our hands and seals.
    “Ansel Ehvin, (seal.)
    “ John Brooks,” (seal.)

      The note was by Edinger, on the 14th of January, 1858, before the expiration of his term of office, assigned to the plaintiff for value. At the May term, 1853, the court ordered the unfinished business in the partition suit to be transferred to William Morgan, Edinger’s successor in office. At the same term, an order was made requiring the purchase money of the land to be paid to Morgan. The money was thus paid by Brooks, whereupon the court ordered a deed to be executed. Brooks paid the money to Morgan, with notice of the assignment of the note to plaintiff. Upon these facts, the Circuit Court gave judgment for the plaintiff for the amount of the note, from which the defendants appeal.

      J. W. JYoell, for .appellants.

      JSf. Holmes, for respondent.
    1. The note was assignable by indorsement under the statute; and notice to the makers of the assignment before payment fixed their liability to the .assignee (R. 0. 1845, p. 89, §1, 2. 12 Mo. Rep. 127.) 2. The legal title to the note was vested in John P. Edinger, the payee, and the assignment of it by him by indorsement, for value received, was a collection of the money for which, as the purchase money of the land sold, he and his securities were alone liable. (12 Mo. 127. 9 Mo. 169. 9 Mo. 373. 14 Mo. 551.)
   RylaND, Judge,

delivered the opinion of the court.

1. The bond on which this action is prosecuted, shows on its face that it was executed to John P. Edinger, and by him received in his character as sheriff of Cape Girardeau county, The promise is to pay to John P. Edinger, sheriff of Cape Girardeau county, Missouri, the sum of $270, for value received, in the purchase of a tract of land sold to make partition thereof, amongst the heirs of Joseph Whitney, deceased.” This phraseology will necessarily show that the bond is not the individual property of Edinger. It is not given to John P. Edinger, “sheriff,” stopping at that description; but it goes further — calls him “ sheriff of Cape Girardeau county, Missouri;” says it is “for a tract o£ land sold, (that is, by him, as such, sheriff,) to make partition amongst the heirs of Whitney, deceased.”

The statute concerning, partition, when lands arc sold for that purpose, directs the sheriff to take the. notes or bonds for the purchase money, collect and pay over the same according to the order of the court.

The sheriff and his securities are responsible for his official acts in cases of partition. The same statute expressly declares: “-IE any sale be made by any sheriff before he goes out of.office, and the business be not completed when he ceases to be sheriff, he may do all subsequent acts, collect and pay over the money and make the deed, in the same manner as if he continued to be sheriff; unless the-Circuit Court shall, by order, direct the business to be transferred to the next sheriff; in which ease, all acts remaining to be done by the sheriff, at the date of such order, shall be done by the sheriff then in office.” The record shows that Edinger’s term of office expired before he had completed the business of partition in the case of Whitney’s heirs ; and that the court, at May term, 1853, ordered the unfinished business of said partition to be transferred to William Morgan, who wa.s then the sheriff of said county, for completion ; and that the holder of the purchase money for said land, should pay the same to the said sheriff Morgan, or attorney of the partitioners for distribution ; and that, thereupon, said Brooks, the purchaser, paid to said Morgan, sheriff as aforesaid, $270, the purchase money for said land.

In our opinion, this bond given by Brooks and his security to Edinger, sheriff, for the land sold in the case of partition, bearing on its face evidence to all persons of its consideration, and of the official character of the payee, was liable as soon as Edinger should cease to be sheriff, to the order of the Circuit Court, transferring it to the next or new sheriff, for collection, in order to complete the business of partition. And the person who should receive such bond from the sheriff, by assignment, must take it liable to such order of the court. In this case, the order transferring the business having been made, and the person purchasing the land and owing the money having been ordered to pay the same to the new sheriff and having paid it, must be protected by such payment from any further demand by reason of such bond.

The judgment of the Circuit Court is therefore erroneous, and is, with the concurrence of the other judges, reversed.


source: Caselaw Access Project

author: Gamble, Judge,

license: Public Domain

text:
    Carman, Appellant, vs. Johnson, Respondent.
    1. It is settled that the fee of land disposed of hy the United States remains in the government until a patent issues, and that a patent is a better legal title than a prior entry.
    2. A patent may he obtained under such circumstances that the patentee will hold the title in trust for the party making the prior entry, and may be compelled to convey by a proceeding in equity.
    3. Under the new practice, a party who relies upon facts which would constitute a ground of equitable relief as a defence to an ejectment, must set them out in his answer with the same particularity that would formerly have been necessary in a bill in chancery.
    4. The mere statement in an answer that the defendant’s entry was prior to the entry upon which the plaintiff’s patent issued, is no ground of equitable relief.

      Appeal from Ciarle Circuit Court.
    This was an action for the possession of forty acres of land, which the plaintiff claimed under a patent from the United States, dated April 19, 1850. The defendant claimed the land under an entry with the register and receiver of the land office at Palmyra, dated June 21st, 1847. Under the instructions of the Circuit Court, the substance of which is stated in the opinion of Judge Gamble, the plaintiff submitted to a nonsuit, and after an unsuccessful motion to set the same aside, appealed to this court.
    Dryden, for appellant.
    1. When there is authority in the officer issuing a patent to issue it, all enquiry into the regularity of his conduct in issuing it is precluded, except in a direct proceeding to vacate it. (Allison v. Hunter, 9 Mo. Rep. 758.) 2. A patent is a better legal title than an entry. (R. C. 1845, tit. Ejectment, §2, p. 440. Mlison v. Hunter, 9 Mo. Rep. 758. Bagnell v. Broderick, 13 Peters, 436. Griffith v. JDeerfelt, 17 Mo. Rep. 31.)

      Hnderson and Richmond, for respondent.
    1. The entry of Johnson entitled him to the patent, and a subsequent entry by Carman was illegal, and the patent issued thereupon void. (Groom v. Hill, 9 Mo. Rep. 320. Id. 473, 741.) 2; Johnson’s entry was prima facie correct, and no sufficient evidence was offered to rebut the presumption of its correctness.
   Gamble, Judge,

delivered the opinion of the court.

The plaintiff claims the land in controversy in this ejectment under a patent. The defendant sets up an egy¡¡jy older than the patent, and denies that, after his entry, the United States had a right to sell the land to the plaintiff, or to issue a patent, and alleges that the plaintiff obtained the patent by fraud, and that therefore it is void.

Evidence was given for the purpose of showing that the plaintiff, having entered by mistake a different tract of land, had applied to have the entry cancelled, and to.have the money applied to the entry of the land now in dispute; such applications could only be acted upon and decided by the commissioner of the general land office; and that, pending the plaintiff’s application before that officer, the defendant had been permitted to enter the land-, upon condition that the entry was to be vacated if the application of plaintiff was sustained; that the plaintiff’s application was sustained, and the officers of the land office vacated the entry of defendant- and issued a patent to the plaintiff.

The Circuit Court, in the two instructions given at the request of the ■ defendant, and which are the only instructions given, required that the plaintiff, in order to a recovery in this ejectment, should show facts anterior to his. patent and prior to.' the entry of defendant. The first of these instructions required that he should show an application to the register, made in a particular manner, and prior in time to the defendant’s entry, or he could not recover. The second lays down the law broadly that he could not recover without showing an application and entry older than the defendant’s entry.

The Supreme Court of the United States has repeatedly declared that.the fee in land disposed of by the United States remains in the government until the patent issues, and this court has followed those decisions, acknowledging their obligation. In the present case, two parties claim the right of entering a particular portion of public land, and a controversy is oarried on before the officers of the land department. The decision is in favor of the plaintiff, and his entry is recognized and the patent issues to him. The fee in the land is thus vested in him, and if there is any equity in favor of defendant, which would make the plaintiff a trustee of the fee for his benefit, that equity is to be enforced, not by declaring the patent void, but by a proceeding by which the fee would be transferred from the plaintiff to the defendant. If the defendant had a patent junior to that of'the plaintiff, it might answer his purpose to have the elder patent declared void. The present action is simply an action of ejectment, and the parties rely on a patent on one side and an entry on the other. Between two such titles, as giving the right to possession, the law gives effect to the patent, in such action. (Griffith v. Deerfett & Powell, 17 Mo. Rep. 31.) Nor does the effect of the patent depend upon the mere fact of priority of entry, for if the patent issues on the junior entry, it still transfers the fee which remained in the government after the first entry.

If the patent was obtained under such circumstances as would make the grantee in it a trustee for another, the mode of enforcing such equity, under our former practice, was to file a bill in a court of equity -to compel a conveyance of the title held under the patent. If the same facts that would be sufficient to compel such conveyance can be available under our present practice, in the defence of an ejectment for the possession, they must be set up in the answer, with the same particularity that would be necessary in a bill in chancery.

The answer, in the present 'case, merely sets up the entry tof ■defendant as prior to the date of the plaintiff's patent, ana alleges that the patent was illegally and fraudulently obtained, and was, therefore, void. If the present defendant had sought, in a court of equity, to divest the plaintiff of the fee acquired by the patent, he would have stated the time when the plaintiff entered the land in the land office, and the circumstances under which the entry was permitted by the officers; whether under a mistake or upon false representations made by the plaintiff*, setting forth the facts in relation to the mistake, or the representations made. In like manner, any other ground of equitable claim to the land, as against the grantee in a patent, would* have been stated in a bill with precision. The only fact alleged, in the answer in this case is, the fact that the defendant entered the land prior to the issuing of the plaintiff’s patent. It, is true that it is, in parts of the answer, assumed that the entry by the plaintiff was after that by the defendant, but it is not: any where stated distinctly as a fact, that the entry by plaintiff' was the junior entry. The date of it is not stated in the answer. Now the fact that the defendant’s entry is older than; the plaintiff’s patent, is consistent with the fact that the entry upon which that patent issued may have been older than that of' the defendant. But if it be assumed that the patent issued to. plaintiff upon a junior entry, still, if in any case, under the-laws of the United States and practice of the government, a. patent could rightfully issue upon such junior entry, the mere-statement that the defendant’s entry was the elder, is not of itself the statement of a ground for equitable relief, for, in, favor of the patent, the presumption will be made that the facts warranted the officer in issuing it. The record, in this case,, shows that evidence was given upon the trial for the purpose of establishing the facts that Carman, the plaintiff, had, by mistake, made an erroneous entry upon other land, and that he had made an application to have the-error corrected and the-money applied to the purchase of the land in question, and that this application was pending in the general land office when the defendant’s entry was made. This proceeding was under the act of March 3,1819, (3 U. S. Stat. 526.) Without expressing any opinion upon the question, whether the evidence gives established the fact of such application having been made before the defendant was permitted to enter the land, it is sufficient to say that it was a proper execution of that act, upon an application being made to correct the error in the previous entry, and apply the money to the payment for another specified tract, to hold the tract thus applied for as exempt from entry by others. At least, the officers of the government, in giving such construction and effect to the act, would not be regarded as attempting to exercise a power injurious to others. In such case, if the defendant succeeded in obtaining permission from the register to enter the land, it would be but the just exercise of the powers of the land department to refuse to recognize the entry of the defendant, provided the application of the plaintiff to correct the error in his previous entry was sustained, and his right to purchase the land entered by defendant was recognized. In such case, it is not believed that a court of equity would interfere to divest the title held under the patent. This, then, would be one case in which the mere priority of entry would create no equity against the person holding the patent under the junior entry, and this is only given as an instance. •Other cases might be stated in which a eourt of equity would mot disturb the title held under the patent, although another person had made the first entry.

The answer, then, in this case, if it be understood to allege ■that the defendant’s entry was the elder, does not, by that state■ment alone, make a case for equitable relief, and the instructions of the the court, which required the plaintiff to go beyond his patent and prove an entry prior to that of defendant, were ■erroneous. The defendant, if he has a claim upon the courts ■to interpose for his relief, must show it more specifically.

The judgment is, with the concurrence of the other judges, •reversed, and the cause remanded.


author: GAMBLE, Judge, Scott, J.

text:
    Creath et al., Plaintiffs in Error, vs. Smith & Atkins, Defendants in Error.
    1. A hill of review for errors apparent on the face of the record, will not lie after the time when a writ of error could he brought.
    2. In this state, a decree against infants, divesting their title to real estate, is not erroneous, because no day is given them after coming of age to show cause against it. (Scott, J., dissenting.)

      Error to Wayne Circuit Court.

    This was a bill of review filed in 1851, by the heirs of William Creath, to reverse a decree rendered against them in 1840, upon a bill in chancery, filed by Zenas Smith.
    The original bill, upon which the decree complained of was rendered, set forth substantially that Smith, the complainant therein, and William Creath, in his life time, were partners in. .business ; that Smith having advanced more stock in trade than Creath, the latter conveyed to the firm certain real estate to be used as stock ; that aftewards, said Smith & Creath purchased with partnership funds, and received in payment of debts, other real estate ; that all of said real estate was entered upon the books of the firm as partnership property, and it was agreed between them that it should be held and treated as such; that, at the death of Creath, the firm was largely indebted, and that the indebtedness could not be discharged unless the said real estate was applied to that purpose. The complainant, Smith, prayed the court to decree that the real estate be sold, and that the proceeds, (after deducting such 'sum as might be assigned to the widow of Creath for her dower, unless the same could be set apart to her before the sale) be applied to the payment of the partnership 'liabilities. The widow and minor heirs of William Creath, and James A. Atkins, his administrator, were made defendants. The court appointed Atkins guardian ad litem of the minor heirs. He appeared and answered as guardian and also as administrator, admitting the allegations of tbe bill and consenting to a decree according to its prayer. His answer was not sworn to. Tbe widow also filed an answ.er not sworn to, admitting tbe allegations o£ tbe bill, and accepting such portion of tbe real estate as might be set apart to her for her dower, or if tbe real estate could not be divided, sucb portion of tbe proceeds as might be assigned to her in lieu thereof. In October, 1840, tbe court, upon tbe bill, answer and exhibits, without further proof, decreed that tbe real estate be sold by a trustee appointed for that purpose,' and that tbe proceeds, (after deducting tbe widow’s dower,) be placed in tbe bands of Smith, tbe surviving partner, to be accounted for as partnership effects. The real estate was sold pursuant to the decree, and at the sale, Smith and Atkins became tbe purchasers. They afterwards received conveyances from tbe trustee for tbe portions purchased by them respectively. Tbe trustee made report of his proceedings to tbe court, and they were approved.
    In tbe present bill of review, tbe widow (who has since intermarried) and heirs of Creath seek to have tbe decree upon tbe original bill reversed, and tbe proceedings thereunder annulled. They state that the real estate was not needed to pay tbe partnership debts, that Smith had never accounted for tbe proceeds thereof, and that the widow bad never received the sum assigned to her in lieu of dower. They specify as objections to the decree, that it was made' absolute against minors, without giving them a day after coming of age to show cause against it; that tbe bill contained no sufficient allegations to justify it; that it was rendered upon the bill, answers and exhibits without any proof ; that the answers of Atkins, as guar"d-ian and administrator, were not sworn to ; • and that a decree '■could not be rendered against minors upon the consent of their ■guardian.
    A demurrer filed to the bill of review being sustained, the complainants sued out this writ of error.

      E. & B. Bates and T. Polk, for plaintiffs in error,
    among ■other points, relied upon tbe following: An infant is entitled to a day after coming of age to show cause against a decree affecting his inheritance, £i according to the rules, usage and practice of courts of equity,” both English and American. (R. 0. 1835, p. 506, §1. Ruby v. Strother, ,11 Mo. Rep. 417. 14 Cond. Eng. Ch. Rep. (2d part,) 160. Harr. Chan. 425. Richmond v. Taylor, 1 P. W’ms, 737. Gregor v. Moles-worth, 2 Yesey, 109. Per Lord Eldon, in Perry v. Phelin, 17 Yes. 178. 2 P. W’ms, 401. 1 Story’s Eq. 606, §652. Story’s Eq. PI. 322, §405. Pope v. Le Mastre, 5 Litt. 77. Ruler v. Bullet, 4 Bibb, 11. Williams v. Stratton, 10 Sm. & M. (Miss.) 418. Id. 428. 1 Dessaus. 201. 1 Dessaus. 109. Lamar y. Jones, 3 Harr. & McH. 328. 1 Tenn. Rep. 79.)

      Glover & Richardson, for defendants in error,
    among othe? points, argued that the omission of the clause in the decree giving day to the infant defendants, after coming of age, to show cause against it, did not render it erroneous. They insisted that the rule which required a day to be given in the decree in any case was an anomaly, and not founded in good reason, and that, admitting the general rule, the present case was an exception to it, as the infants were not required to execute any conveyance. They cited the following authorities upon this point. (8 Cond. Eng. Ch. Rep. 58. 2 Mylne & Keen, 409. 15 Mo. Rep. 394. 1 P. W’ms, 736. 1 Yer-non, 295. 2 Yernon, 429. 1 Yes. & Bea. 223. Goodier y. JLshton, 18 Yesey. 4 Henn. & Munf. 450. Ambler, 419. 3 Dessaus. 18,19, 20, 21. 2 J. C. R. 485. 3 J. C. R. 367.)
   GAMBLE, Judge,

delivered the opinion of the eourt.

1. The complainants in this case have filed their bill of review, seeking to reverse a decree made in 1840. The present bill was filed in 1851. There are several errors alleged to exist in the original decree, which need no extended notice, because, if they be admitted to exist, the limitation applicable to such reviews would prevent their being examined in this proceeding. A bill of review, for errors apparent on the face of the record, will not lie after the time when a writ of error could be brought; for courts of equity, in this particular, govern themselves by the analogy of the common law, in regard to writs of error: Story’s Equity Pleadings, 326. The statute has limited the prosecution of writs of error to five years after the rendition of any judgment complained of. Rev. Code, 1845. The same provision existed in the code of 1885.

2. There is one error assigned which probably is not withdrawn from the consideration of the court by the statute, which is, that the decree affects the inheritance of the present complainants, (defendants in the first suit,) who were then minors, and gives them no day after their majority for showing cause against the decree. The reason why this error, if it be one, is not cured by limitation is, that, if the due course of proceeding required that a day should be given, then there must have been the service of a subpoena upon the infant defendants after they came of age, to show cause against the decree, before it would become absolutely conclusive upon them, and therefore the limitation, on a bill of review, would not commence from the mere rendition of the decree. It is of importance to many titles in this State, that this question of the effect of not giving day in a decree against infants, should be settled, for, doubtless, there are many decrees in which no day has been given.

This question was considered by two of the judges of this court, and decided in Hendricks v. McLean, 18 Mo. Rep. 32, and the conclusion there pronounced was at variance with an intimation given in Ruby v. Strother, 11 Mo. Rep. 422. In the present case, as the same two judges alone concur in pronouncing the same judgment, the opinion will only be'directed to the presentation of some additional views upon the question.

In what cases, then, was it necessary, according to the practice in chancery in England, to give day to an infant after he came of age, to show cause against the decree rendered against him in his minority ? It is agreed in all the authorities that, wherever a decree requires a conveyance to be made by a defendant who is at the time an infant, he shall have a day after attaining his full age, to show cause against the decree. It is also clear that, in a decree of strict foreclosure of a mortgage, which terminates the defendant’s right to redeem, an infant defendant shall have a day given him. The first class embraces the great majority of cases reported in the English books, in which the necessity of giving a day has been maintained. In Whitechurch v. Whitechurch, 9 Mod. 125, it is said : The court was clear in opinion that the decree should be final, for that, in cases of trusts, infants are always bound by decrees of this court, and so they are where the will of the ancestor is contested; and it is either set aside or confirmed in equity after trial of an issue devisavit vel non,, or where it is otherwise set aside at law ; and there is scarce any case, where an infant hath time to show cause against a decree, but where it is necessary for him to join in a conveyance in order to complete the estate, and where such conveyance is of the inheritance, as in decrees of foreclosure of mortgages.” Lord Hardwicke, in Sheffield v. The Duchess of Buckingham, West’s Rep. 684, expressed the same views in reference to the necessity of giving day to an infant, confining the practice to cases in which a conveyance, in form or substance, was required from the infant. In Eyre v. The Countess of Shaftesbury, 2 P. Wrn’s, 119, it is said that, in all decrees against infants, even in the plainest cases, a day 'must be given them to show cause, when they come of age; and this comprehensive language of the Lord Chancellor has often been quoted, as declaring the rule to be universal. But Macpherson, in his treatise on Infants, page 426, says : "That these expressions are too comprehensive, and that, in examining the state of the law before the recent changes, (by act of parliament,) we find the cases in which a day was given, carefully, though not, perhaps, with uniform correctness, distinguished from those in which it was not given.” This author seems to regard the rule as properly stated by Lord Hardwicke, in Sheffield v. The Duchess of Buckingham. In Price, v. Carver, 3 Mylne & Craig, 163, Lord Cottenham gays : “ That the decree, (in that case,) in the event of the mortgage not being redeemed, after directing a foreclosure, directs a surrender or conveyance of the legal estate to the plaintiff and then, without considering whether the decree, in the form in which it was made, was correct, he remarks : “ That the infant defendants would have had a day to show cause, according to the course hitherto pursued, the decree being both to foreclose and to procure a conveyance from the infants.”

In many of the American courts, the rule has been adopted of giving day, appare^jdy without regard to its origin or extent in the English courts. In Harlan et al. v. Barne’s Administrator, 5 Dana, 223, it was held to be necessary to give day to infant defendants to show cause against a decree by which land conveyed .to trustees for their use by a voluntary conveyance from their father, who, at the time, was indebted to the plaintiffs under certain judgments, was subjected to sale to satisfy the judgments. The conveyance being of land which was subject to the payment of debts, and being made to hinder and delay creditors, (as is declared in the opinion of the court,) was void as to the complainants. Yet the court say the infant defendants must have day to show cause against the decree. It is obvious that if, in such case, the infants are to have this privilege, it would be difficult to state any relating to real estate in which it must not be given. It is an extreme case. I will not further refer to the many American cases in which this right to show cause is reserved to infant defendants. They are many, and from courts of high authority, although I have seen none which states the principle on which the privilege rests, with any clearness.

Lord Cottenham, in Price v. Carver, says, that the rule for giving day is not the equivalent in equity for the parol demurring at law. When the parol demurs, nothing is done to affect the infant until he comes of age ; but where.day is given to show cause, the decree is made in the minority of the infant, and on his failure to show cause, after being summoned, the decree becomes absolute. Yet, i£ tbe remark made in Mac-pherson on Infants, 427, that, “ exactly eo-extensive with tbe grant of a day to show cause, seems, to be on principle, tbe right to make a new defence after decree,” tbe decree itself is of but little value. It would be almost as well for tbe complainant that tbe parol should have demurred. It is true that it is said that, when day. is given in a decree foreclosing a mortgage, that the infant, in showing cause, is not at liberty to go into the accounts, but is confined to showing error on the face of the decree, yet this is manifestly an exception to the general rule.

Now how is our law on this question? The codes of 1845, 1885 and 1825 provide, “That, in all cases where adequate relief cannot be had in the course of proceeding at law, the several courts in this state having chancery jurisdiction shall have power to proceed therein, according to the rules, usages and practice in courts of equity.” Yet, chancery jurisdiction does not originate in the statutes found in either of these codes. The act of October 26, 1810, (1 Terr. Laws, 239,) vested chancery jurisdiction in the general court, and this before the common law, as a system, was introduced by statute. It may be said that the terms employed in this early act must be understood as introducing the English chancery modes of proceeding, because we look to that country for the distinction between proceedings at law and proceedings in chancery, although, at the date of the act, tho common law was not introduced expressly by statute. There may be force in this view of the meaning of the act, but for the present, the only object in referring-to this first act is, to show that the language employed in the subsequent codes'has no peculiar meaning, when considering the present question.

If we examine the legislation of the state and of the preceding territorial government, we will see that the disposition of the estates of infants in most of the cases in which day was given in the equity courts of England, was made without any delay, and without the idea being entertained that the case was to be opened when the infant attained his majority. In cases of foreclosure of a mortgage, the universal practice has been, since the act of 1807, to foreclose and sell the estate under statutes, without regard to the fact that the heir of the mortgagor was an infant. In the specific execution of contracts for the conveyance of land, and in all other cases in which, according to the usage and course of chancery, .the court could decree a conveyance of real estate or delivery of personal property, the court, under the act of 22d January, 1816, (1 Terr. Laws, 451, sec. 2,) was required to decree that the estate pass from the defendant to the complainant absolutely, and the decree was to be recorded as a conveyance within one year after it was made. The same provisions are contained substantially in the subsequent acts regulating practice in chancery, except that the court is left at liberty to decree that a conveyance be executed or that the title pass. But in all, the decree is required to be recorded within a limited time after it is rendered. In the language of these acts, no distinction is made between infants and adult defendants, and the fact that the decree is to be recorded Avithin a limited period, shows that the meaning of the act is, that the decree passes the title without any subsequent litigation. It is true that the code of 1825 makes provision for a proceeding in the court of chancery against the executor or administrator of a party who has contracted to convey real estate, and died without making the conveyance, in which the court is directed upon being satisfied that a decree for the specific execution ought to be made to make such decree, “ saving to infants, married women, persons of unsound mind, and persons absent from the United States the term of five years after their respective disabilities are removed, to appear and file their petition or bill of revieAV, to set aside such decree for fraud, collusion, or other cause.” The decree thus made was to be carried into effect by a conveyance from the executor or administrator. The same provisions in substance are contained in the subsequent codes, exce'pt that the proceeding may be had in the county eo.urt. In the proceeding authorized by these acts, the heirs are not parties. The, defendants are executors or administrators. The saving clause in the decree, which comprehends adults absent from the United States, as well as infants, married women and persons of unsound mind, has no analogy to the clause in a decree giving day to an infant defendant to show cause.

In Missouri, both before and since she became a state, the real estate which descended to an heir has been subject to sale on the application of an executor, administrator or creditor to satisfy debts, and in this proceeding, the title of the heir is completely and absolutely divested, without regard to the character or dignity of the debts. The real estate of an infant has always been subject to sale for his support or education, upon the application of his guardian to the inferior court having jurisdiction of such cases.

In the case now before the court, the original bill which was filed against the complainants in this bill of review, alleged that Creath, the ancestor of the complainants, was a partner in trade with Smith; that he conveyed to the firm, as a part of its stock, certain real estate, to be used as stock ; that other •real estate was taken in payment of debts due to the firm ; that this real estate was entered in the books of the firm as partnership property ; that there are debts of the firm, which cannot he paid without the application of this real estate. The bill then prays for a decree for the sale of the property by a commissioner to be appointed by the court. This rapid statement is made merely to show the nature of the proceeding.

The decree directs the sale of the estate by a commissioner named, and the terms. The sale was made, reported and approved, and the commissioner made the conveyances.

In the opinion of the court, the decree was not erroneous, because of a failure to give day to the infant defendants. The rule, as stated in Whitechurch v. Whitechurch, and by Lord Hardwicke, in Sheffield v. The Duchess of Buckingham, is the rule which we regard as the true rule in the English practice, and it will be seen, by reference to our own statutes, that that rule is not applicable here, or that our statutes are not framed upon the idea that such rule should prevail. The English parliament has lately interposed, and by 1 Will. IV, c. 47, §11, has authorized the courts of equity, in some cases, in which conveyances are required to be made by infants, to order the infants to mate the conveyances, and has declared that such conveyances shall be as effectual as if the persons were adults.

The judgment of the Circuit Court is, with the concurrence of Judge Ryland, affirmed.

Scott, J.

For my views in relation to the question involved in this case, reference is made to the case of Ruby v. Strother, 11 Mo. Rep. 422. I dissent from the opinion of the majority of the court.


text:
    Wilkinson et al., Appellants, vs. The American Iron Mountain Company, Respondent.
    1. Neither by the Spanish law nor ty the custom of Paris did a royal grant or gift to either of two spouses enter into the community.
    2. The same rule applied to concessions in Louisiana, unless when made upon a consideration which was a burden on the community.
    3. A marriage contract, entered into at Ste. Genevieve in 1797, contained this clause : “ The intended consorts shall be in community as to all property and real estate acquired during marriage, according to and in conformity with the custom of this place, according to which their community shall be regulated, &c. Held, the words " according to and in conformity with the custom of this place” referred to the community, and not to the acquisition of property, and the clause did not have the effect to bring into the community, properly which would otherwise not be embraced by it.
    4. The operation of a clause in a marriage contract, establishing a community, cannot be enlarged by a subsequent clause providing for a renunciation of it.

      •dppeal from St. Francois Circuit Court.

    This was an action brought in 1852 by six of the eleven children and heirs of Marie and Joseph Pratte, to recover an undivided three-elevenths of 20,000 arpens of land on the head waters of the St. Francis river, known as tbe Iron Mountain tract, confirmed to Joseph Pratte bj act of congress of July 4th, 1836.
    The plaintiffs claimed in right of their mother, under a marriage contract entered into by the said Joseph and Marie, shortly before their marriage, dated Ste. Genevieve, February 4, 1797, which was claimed to have the effect to establish a community between them as to the land in controversy, subsequently conceded to the husband by the Spanish authorities. The defendant claimed the whole tract under conveyances from Joseph Pratte and his wife during their life time, but not properly acknowledged to operate upon the wife’s community interest, if she had any, and if her husband was not competent to convey it. A translation of the marriage contract was annexed to the plaintiffs’ petition, the original being in the French language. The following are its provisions, as translated in the record, so far as they bear upon the questions in this case:
    “ The intended consorts shall be in community as to all personal property and real estate acquired during marriage, according to- and in conformity with the custom of this place, according to which their community shall be regulated, although they might hereafter live or acquire property in countries (governed by) contrary laws, usages and customs, which they do by these presents expressly renounce and disclaim.” * * *
    “ The intended consorts take each other with the claims to them belonging, whether due or to become due, coming to them from their respective fathers and mothers, in whatever places they may be situated. Those of the intended husband consisting now of 3000 livres due to him out of the inheritance of his deceased mother, which his father promises to pay him immediately after the celebration of the said marriage, shall enter into the mass of the said community. And those of the intended wife, consisting of five thousand livres, as her portion and advance on inheritance, which her father and mother promise also to pay her after the celebration of the said marriage, shall also enter into the said community.” *****

      “In consideration o£ tbe marriage, the said intended husband has endowed and does endow the said intended wife with the sum of five hundred Iivres of prefixed (prefix) dower, to be paid over, to be had and taken as soon as she has a right to it, out of all the personal and real property,-present and to come, of the said intended husband, who has pledged -and mortgaged the same, for the purpose of furnishing and securing the said dower, which the said intended wife shall enjoy and possess according to the custom of this place, without her being obliged to sue for it. The survivor of the said intended consorts shall take by preciput; and before making any division of the property belonging to their community, the sum of two hundred and fifty Iivres in personal property of the said community, according to the appraisement of the inventory and without overrating ; the said sum (to be paid) in cash at his (survivor’s), choice and option.”
    “It shall be allowed to the said intended wife and to the children who may be born of said marriage, by renouncing the said community, to take back all that she will have brought to said marriage, and that which shall have come and befallen to her during said marriage, whether it be personal or real property,by inheritance, donation, bequest or otherwise; and the said intended wife, if she-survives, (shall have a right to take) her dower and preciput (or jointure) as above (specified,) the whole being free and clear of all' debts and mortgages of the said community, although she might have spoken in the same, bound herself or been condemned to (pay said debts and mortgages) for which, in' such case, she and her children shall be acquitted and indemnified on the property of the said intended husband, on which property, for this reason and for the fulfillment of all the clauses and conditions of the present contract, there shall be a mortgage from this day.” * * *
    It appeared that this marriage contract was never recorded, as required by the act of December 22, 1824.
    On the 28th of September, 1797, after his marriage, Joseph Pratte addressed to Don Zenon Trudeau, lieutenant governor of Upper Louisiana, a petition for a grant of 20,000 arpens of land on the waters of the St. Franqois river, stating that he wished to form a settlement, and that the lands asked for were “ suitable to his views, as well for agriculture, as for the raising of a great quantity of cattle, with which he is well provided,” and that the quantity asked.was “proportionate to his strength and means for improving them.” It was found by the Circuit Court that Joseph Pratte applied for this concession at the instance of his wife’s father, Francis Valle. Valle had previously obtained a grant for 400 arpens, including the Iron Mountain, and desiring to procure a larger quantity for the benefit of his children, and fearing that he could not do so in his own name, he procured his son-in-law, Pratte, to apply for and obtain a concession for the 20,000 arpens, including the 400 arpens before granted to him, which he relinquished. Pratte was to hold the land for the benefit of himself and Valle’s other children in equal shares.
    On the 17th of October, 1797, the lieutenant governor ordered the surveyor to survey the land asked for by Pratte., and deliver to him a plat and certificate of the survey, to serve him as a title, until a more formal title could be obtained from the governor general.
    In December, 1811, Pratte presented his claim to the United States board of commissioners for confirmation, and it was rejected.
    On the 2d of June, 1829, Pratte and wife, pursuant to the arrangement with Francis Valle before the concession, joined in a deed conveying to the other heirs of Francis Valle, the undivided six-sevenths of the tract in controversy. This deed was acknowledged before the clerk of the Circuit Court. The certificate stated that the wife acknowledged that she “ executed the same freely and voluntarily, and relinquished her dower,” &c., but omitted to state that she was made acquainted with the contents.
    In 1884, Pratte’s claim was, by the board of commissioners, recommended for confirmation, and confirmed by the act of July 4,1836.
    On the 13th of February, 1837, Pratte and wife joined in a deed conveying to JohnL. Yandorenthe undivided one-seventh of the tract. This deed was acknowledged before a judge of the county court, and the certificate stated that the wife ‘ ‘ acknowledged that she executed the deed and relinquished her dower,” &c. Marie Pratte died in 1841, and Joseph Pratte in 1846, leaving the plaintiffs and others their heirs at law.
    All the title which passed by the two deeds from Pratte and wife, of June 2, 1829, and February 13, 1837, was in the American Iron Mountain company.
    The Circuit Court declared that the grant of the land in controversy to Joseph Pratte vested in him the complete title, and that the same did not enter into the community established by the contract between him and his wife ; and that, even if it did enter into the community, yet the husband, as the head of the community, could alienate it; and that therefore the plaintiffs could not recover. The case was argued in this court by Mr. Noell and Mr. Frissell, for appellants, and by Mr. Field and Mr. Young, for respondent. The following points were made :
    Mr. Noell and Mr. Frissell, for appellants. 1. The concession of 1797 to Joseph Pratte was not a royal gift, but a grant founded on considerations which appear in the evidence before the board of commissioners. (4 Mart. N. S. R. 212.) 2. If such concession be a royal gift, still by the terms of the marriage contract, it went into the community. (Fabre et al. v. Sparks, 12 Rob. 31.) 3. The marriage contract in evidence this case was an authentic act, and a record under the Spanish in law, and imparted notice to all the world of its contents. (McNair v. Dodge, 7 Mo.) 4. The property in controversy having entered into the community while the Spanish law was in force in 1797, its character as community property was fixed, and the inchoate right of the mother of plaintiffs was vested, and all persons were bound to take notice of it; and the act of 1825, requiring marriage contracts to be recorded could not have tbe effect to divest rights, or to destroy the effect of notice which had already attached to the property, and by which all persons and parties were bound, and had been for twenty-eight years. 5. The law in force at the time of the marriage of Joseph Pratte and Marie Talle established the community upon the mere fact of marriage, independent of any contract; and as to all property acquired before the change of government, the community right attaches, and there is no notice in fact required as to the date of the marriage and the law in force fixing the wife’s inchoate right in property acquired by the husband in his own name; but purchasers acquiring title from the husband stand on the same footing, as to notice, as the same class of persons do in reference to the wife’s dower at common law or under the statute. 6. The deed of 1829 is insufficient, from 'the character and’ form of the acknowledgment, to pass any interest of the wife. 7. The facts do not establish a trust in favor of the grantees in the deed of 1829, and if a trust was established, it was in favor of all the heirs of Francis Valle, and the mother of plaintiffs, being one of them, was entitled to one-seventh of the land in her own right, -which did not pass by the deed to Vandoren. 8. The concession being obtained through the influence and assistance of Francis Valle, the father of Mrs. Pratte, and she being the meritorious consideration of the concession thus obtained, according to the principles and spirit of the Spanish law, the property becomes paraphernal, and the husband could not convey it, even under the Spanish law.
    Mr. Field and Mr. Young, for respondent.
    I. The marriage-contract of Joseph Pratte and his wife, not having been recorded pursuant to the provisions of the act of 1824, was invalid as to-the defendant being a bona fide purchaser without notice.. ( Wilkinson v. Rozier, 19 Mo. Rep.) II. The land conceded by the Spanish government to Joseph Pratte being a royal: grant out of grace and favor, and not as a reward for services rendered or a price paid, did not enter into the community. 1. Not by the rule of the Spanish law regulating community. ( Gayoso v. Garcia, 1 Mart. N. S. 833. Frique v. Hopkins, 4 id. 214. Rouquier v. Rouquier, 5 id. 99. Hughey v. Barrow, 4 La. An. 250. Escriche, Dice. Juris. Voc. Bie-nis gananciales.) 2. Not by the custom of Paris. (Chapin, Cout. de Paris, liv. 11, tit. 1, §12. Lebrun, Traité, de Comm, liv. 1, c. 5, §30) IIL If the land in question were part of the community property, the deed of the husband was competent to convey it. (Moreau v. Detchemendy, 18 Mo. Rep. 522.) 1Y. The confirmation to Joseph Pratte individually merged all the rights of the wife arising under any antecedent law or contract of community ; and the purchaser under the husband acquired a perfect title. (Guyol v. Chouteau, 19 Mo. Rep. 546.)
   Gamble, Judge,

delivered the opinion of the court.

The first question presented by the parties in the discussion of this case is, whether the land granted by the Spanish authorities to Joseph Pratte came into the community established by the contract between him and his wife. If it did not, there is ¡an end of the case, because the plaintiffs only claim under the wife of Joseph Pratte, upon the ground that it was property of ¡the community.

We look to. the petition which was presented to the lieutenant governor, and to that alone, to ascertain the grounds upon which Pratte applied for a concession, and when the order to put the party in possession of the land, made by the lieutenant governor upon the petition, suggests no other consideration for the grant than that contained in the petition, we find the motives and considerations upon which the concession was made to be just those set out in the petition. In the present case, the grant was a mere bounty, having no reference to the existence of the community.

A royal grant or gift to either of two spouses did not enter into the community of acquisitions and gains, which, under the Spanish law, resulted from the mere fact of marriage. (Gay- oso v. Garcia, 1 Mart. N. S. 334. Frique v. Hopkins, 4 Mart. N. S. 212. 5 id. 98. Hughey v. Barreno, 4 Arm. L. R. 250-.) In Frique v. Hopkins, the rule of the Spanish law is considered as applying to concessions made in Louisiana, and the application of the rule is made, upon consideration of the motives upon which such concessions'were ordinarily given. If it appeared that the-concession was made upon a consideration which was a burden on the community, the case would be an exception to the general rule. This concession or the land granted would not have come into the community created by law upon the marriage of Joseph Pratte and his wife.

The question then arises upon the construction of the marriage contract between Pratte and his wife, whether that contract had the effect of making it a part of the community property. The petition alleges that the contract is in the French language, and the original is not filed with the petition, but a paper is, which is called a translation, and which is treated throughout the trial as a correct translation.

The clause in it which establishes the community, is in these words : The intended consorts shall be in community as to all personal property and real estate acquired during marriage, according to and in conformity with the custom of this place, according to which their community shall be regulated, although they might hereafter live or acquire property in countries governed by contrary laws, usages and customs, which they do by these presents expressly renounce and disclaim.”

It is to be regretted that we have not the original of this contract in the record, for some of the terms employed in the translation, such as “personal property” and “ real estate” satisfy us that it is rather a free translation, if the words of the original are those commonly used in such instruments, and in the argument of the case, the counsel have admitted that the words acquets” and “ conquets” are used in the original as a designation of the property brought into the community.

But we will consider the words used in the translation. The parties are to be in community as to all personal property and real estate acquired during marriage, according to and in conformity with the customs of the place. What is to be according to and in conformity with the custom ? Not the acquisition of the property certainly. Then it can only be the community in the personal and real property, which is to be according to and in conformity with’ the custom. The clause has the same meaning as if it read, “ the parties shall be in community according to and in conformity with the custom of the place, in all personal property and real estate acquired during marriage.” The words were arranged in the first clause of the sentence in the order in which they stand in the contract, simply because, in the latter clause of the sentence, the custom was to be declared the rule of the community in other countries, and by making the custom the last subject in the first clause, the second applies to the same subject, without any necessity for repetition of words, and without interrupting the train of ideas.

Taking this to be the meaning of the clause which establishes the community, we look only to the custom referred to, in order to ascertain what property came into the community, and in the absence of any special local custom, if we take either the custom of Paris, or the Spanish law to be the rule, a royal gift to either spouse does not belong to the community. It has been insisted that other clauses of this contract give a wider scope to that which creates the community.

The clause which brings into the community the money due to the husband out of the inheritance of his deceased mother, and that promised to the wife by her father, by way of advancement, if it be understood to bring to the coihmunity funds which, from their character as inheritance or donation, would not enter into the community as created by law, shows that the first clause, which established the community, was not understood to have the effect of bringing them in by its general terms. The argument then, from this clause, is legitimate, that it was deemed necessary to specify, as parts of the community property, that which was not of a description otherwise to become sucb by law, and consequently a royal grant did not enter into it without a specification that would embrace it.

The clause providing for a renunciation of the community by the wife, or her children, is also supposed to afford a reason for giving to the community clause a construction which will bring within it the present property, although a royal gift. This clause allows the wife, upon a renunciation of the community, to take hack all that she shall have brought into the marriage, without its being liable for the debts of the community, and giving a mortgage upon all the husband’s property for the reimbursement of any sums she may have been obliged to pay, and for the general fulfillment of the clauses and stipulations of the contract. The argument is that, because she is allowed to take back all that she shall have brought to said marriage, “ and all that shall have come and fallen to her during marriage, whether it be personal or real property, by inheritance, donation, bequest or otherwise that, therefore, the community is to be held to include all property of every description.

A renunciation of the community is an abandonment of all claim under it, and places the parties in altogether different relations in respect to the property which they respectively possessed and the profits arising from its use during marriage. The language of this clause is in a common form, and does not contribute to give greater force or scope to that which fixes the extent of the community. The case of Fabre v. Sparks, 12 Rob. 31, gives no support to the construction here contended for. There, a marriage contract which created a community in all their estate, real and personal, “present and to come,” stipulated that, upon the death of either party, without children of the marriage, the amount of “ property brought into the community” should go to the surviving husband or wife. The question was, what property was embraced in this last clause in favor of the survivor, and it was held that all the property of each, “present and to come,” being brought into the community, that was the property to which the survivor was entitled, whether owned at the time of the marriage or subsequently acquired. In the present case, the attempt is to enlarge the operation of the principal clause establishing the community, by reference to another clause providing for a renunciation of the community. The latter clause cannot have this effect, nor, in fact, does it require us to give such force to its language, if it could legitimately so affect the first clause. The chief object of this latter clause is, to free the property of the-wife, on a renunciation, from liability for the debts of the community, and give her a mortgage on her husband’s property, so as to preserve to her the right of election at the dissolution of the community, either to abide by it and take her interests under it, or if that was not to her interest, then to take back her property without liability for debts, and so to stand preferred over all creditors, and also to have a mortgage for her security upon her husband’s property.

Upon the whole, we think this property did not enter into the community, and therefore the plaintiffs are not entitled to recover. The judgment is, with the concurrence of the other judges, affirmed.


author: Gamble, Judge.

text:
    Davidson, Appellant, vs, Rozier, Respondent.
    1. Judgment reversed because the record contained no finding of facts, tlie case being tried by the court without a jury.

      Appeal from St. Francois Circuit Court.

      D. E. Ferryman, for appellant.

      M. Frissell, for respondent, c.onfessed error.
   Gamble, Judge.

Trial of issues before the court without a jury. No finding of facts by the court. Judgment reversed and cause remanded.


text:
    Jamison’s Adm’r, Appellant, vs. Hughes, Respondent.
    1. No finding of facts.

      •Appeal from Washington Circuit Court.

      J. W. JV’oell, for appellant.

      M. Frissell, for respondent.
   Gamble, Judge.

Trial of issues before the court without a jury. No finding of the facts by the court. Judgment reversed and the cause remanded.


author: Ryland, Judge,

text:
    Valentine, Respondent, vs. Havener, Appellant.
    1. The only effect of a failure by a mortgagee to make a subsequent incum-brancer a party to the proceeding to foreclose is to leave his right to redeem still open. It will not defeat an action for the possession by the mortgagee claiming under the foreclosure.
    2. An unrecorded deed is good against a judgment, if recorded before an execution sale under the judgment. (Davis v. Oumsby, 14 Mo. Rep. 170, affirmed. Scott, J., dissenting.)

      •Appeal from Franklin Circuit Court.

    Action for the possession of land. The plaintiff claimed under a mortgage executed to him by John E. L. Brown, dated July 22, 1844, and recorded January 26, 1846. Suit was brought against Brown alone to foreclose the mortgage, the plaintiff purchased the land at an execution sale under the judgment of foreclosure, and received from the sheriff a deed dated April 9, 1852.
    The defendant answered, setting up that his landlord purchased the land at an execution sale under a judgment rendered on the 4th of October, 1845, against Brown and another, and that he received a sheriff’s deed dated April 10, 1846. The deed showed that the levy under which the sale was made, took place on the I6tb o£ March, 1846. The defendant further insisted that his landlord was not bound by the proceeding to foreclose the mortgage, because not a party to it. This answer was, on motion, stricken out, and judgment entered for the plaintiff, from which the defendant appealed.

      M. Frissell, for appellant.
    Under the 8th section of the act concerning mortgages, (R. C. 1845,) the defendant, not being a party to the suit to foreclose, is not bound by the judgment of foreclosure. After foreclosure and sale, and the execution of the deed, the mortgage is merged, and is of no further use than to show the date of the inception of the title conveyed by the deed.

      Stevenson and Gale, for respondent.
   Ryland, Judge,

delivered the opinion of the court.

The only question for our consideration in this case involves the propriety of the act of the court below in striking out the answer of the defendant to the plaintiff’s petition.

The plaintiff sets up his right to the possession of the land mentioned in his petition, under the mortgage made by John F. L. Brown. This mortgage appears from the record to be dated 22d July, 1844 ; was acknowledged the same day, and filed for record in the proper office in Franklin county, where the mortgaged premises are situated, on the 26th January, 1846, and was recorded January 30th, 1846. Plaintiff shows a sheriff’s deed to the premises, made to plaintiff under a sale by virtue of an execution on a judgment foreclosing the mortgage. This sheriff’s deed was dated 9th April, 1852. In short, the plaintiff’s petition sets up a right to the possession of the land mentioned, under the mortgage made by said John F. L. Brown.

The defendant’s answer shows that he claims possession of the land in the plaintiff’s petition mentioned, by virtue of a sheriff’s deed, dated and executed on the 10th of April, 1846, made by virtue of a sale by the sheriff of Franklin county, on an execution issued on a judgment of Eranldin Circuit Court, rendered on tbe 4tb of October, 1845, in favor of John C. McKenney and Nancy McKenney, against John E. L. Brown and William J. Brown; that the sheriff executed the deed to William J. Brown, and that the same was duly recorded before the proceedings to foreclose the mortgage by which the plaintiff claims title; and that the said William J. Brown was not made a party to that proceeding, and is no wise bound thereby; nor is the plaintiff entitled to the possession, as against the said William J. Brown or any person holding under him; that the defendant holds possession as tenant of William J. Brown, assignee of John E. L. Brown, as above stated ; that, from the date of the sale above stated, possession has been held in conformity with said deed.

The plaintiff moved the court to strike out this answer of defendant, and'assigned, among other reasons, that the answer of defendant did not set up any defence in law to the action of plaintiff; that no title was acquired by the said William J. Brown, which could affect the plaintiff’s claim under the mortgage.

The court sustained this motion, struck out the answer, and the defendant failing to file another or amended answer, judgment was had against him, and he appeals to this court. ,

1. In the opinion of this court, the facts set forth in the defendant’s answer constitute no defence to the plaintiff’s right of possession, as set forth in his petition, and the same was properly stricken out.

The plaintiff shows that the mortgage was executed to him on 22d July, 1844 ; that he proceeded to,foreclose this mortgage and became the purchaser. All the interest and estate then that the mortgagor had, at the date of the mortgage, by virtue of this foreclosure, and sale and purchase by plaintiff, became vested in the plaintiff. John F. L. Brown had no title after that sale. So far as he was concerned, all the title which he had at the date of the mortgage passed oyer to the mortgagee, the plaintiff,'by that sale.

This sale to the plaintiff took place after the defendant purchased John F. L. Brown’s interest at the sheriff’s sale, on McKenney’s execution. McKenney’s judgment was of date prior to the time of the recording of the mortgage; yet the mortgage was elder than the judgment, and was recorded before the defendant’s purchase.

So far then as between mortgagor and the mortgagee, the plaintiff has all the right and estate which both had at the date of the mortgage, by virtue of the said foreclosure and sale.

The defendant, therefore, although the mortgage may, as to him, be considered open, and he may be at liberty to redeem it, he being no party to the foreclosure, cannot set up John F. L. Brown’s title and right, so as to defeat this plaintiff’s action. The effect of the omission to make the incumbrancer a party to the proceeding to foreclose, will be and can be only to let such incumbrancer redeem in this case. ■

2. But, in my view of this subject, the prior mortgage, though not recorded until after judgment, yet being recorded before the sale under the execution issued on this judgment, at which the defendant buys, said mortgage being afterwards foreclosed and property sold, the purchaser at the sale on the foreclosure will hold against the purchaser under the judgment. This view is in. accordance with the principles of this court, expressed in the case of Davis v. Ownsby, 14 Mo. Rep. 170 ; and Judge Gamble concurs fully with this view, and with the law as laid down there.

Judge Scott dissenting.


author: Scott, Judge,

text:
    Page, Defendant in Error, vs. The City of St. Louis, Plaintiff in Error.
    1. The illegal exemption by city ordinance of the property of one tax payer from assessment for a special sewer tax, will not authorize an injunction to restrain the city from collecting the assessment against another tax payer, not exceeding the- amount which the city was authorized to impose; certainly not, unless it appears that, upon payment of the assessment sought to be enjoined, the plaintiff will have paid more than would have been his proportion had it not been for the exemption.

      Error to St. Louis Circuit Court.

    The case is stated in the opinion of the court. It was argued by Mr. Gantt, for the city, and by Mr. Shepley, for the defendant in error.

      Mr. Gantt, for the city,
    relied upon the following points : 1. The agreement made by the city with Lucas, under section nine of the ordinance, was legal, his lot only being exempt from taxation when its due proportion of the sewer debt had been fully paid ; and being legal when made, no subsequent change in the value of the property, by putting up improvements or otherwise, could render it illegal. 2. No inequality in the tax is produced by the exemption, because the money paid by Lucas must be taken to have been applied to the payment of a portion of the sewer debt, and it is only for the remainder of the debt that the remainder of the property is taxed. 3. The property of the defendant in error is bound to pay one half of one per cent, per annum, during the existence of the debt, towards its extinction, lie has only paid the assessment for one year. Under no circumstances, could he have less than one half of one per cent, to pay for the second year, unless the whole debt is liable to be extinguished by two years’ taxes, which is contrary to the whole tenor of the petition. As he shows no present injury by reason of the composition with Lucas, but at most, only a possibility of a future injury, his bill should be dismissed. 4. At most, if the contract with Lucas is illegal, Page is only entitled to be put in the same position that he would occupy, if the contract had not been made. He can only call for a reduction of his tax to what it would have been, if the lot of Lucas had been taxed also. It cannot be that the omission of one lot from assessment renders the whole assessment void, and authorizes the courts to stop the collection of any part of the tax by injunction.

      Mr. Shepley, for defendant in error,
    relied upon the following points : 1. The act of March 12, 1849, contemplates that tbe sewer tax shall be levied and collected annually, according to tbe varying value of tbe property. 2. If the city fails to levy the tax upon any particular piece of property in a sewer district for any year, then persons whose property is assessed can restrain the city from enforcing the tax against them, unless the city can show that the omission was through inadvertence, or that the property omitted was legally exempt. The right to remit' taxes already assessed is not denied, because no greater amount would thereby be imposed upon other property, and the city alone would suffer inconvenience ; but the power of the city to exempt any particular portion of the city from assessment, and to apportion the public burdens upon the remainder, is denied. Even however, if we admit the general power, .it has no application to this case, where, by the act, a power is given to do a particular work in a particular part of the city, and to assess those who are supposed to be benefitted by it, for its cost, in the way therein provided. 3. Unless the assessment upon plaintiff’s property is made in strict conformity with, the act, the lien therein provided does not attach, and the city has no power to sell the property for it, and the plaintiff is entitled to have the sale enjoined. 4. The 9th section of ordinance No. 2498, under which this commutation and consequent exemption is made, is repugnant to the plain provisions of the act. So far as this suit is concerned, it is unimportant whether this section is absolutely void, or whether it is binding on the city. If it is absolutely void, then the plaintiff is entitled to relief, so long as the city continues to treat it as a valid ordinance. If it is binding on the city, as against those who have availed themselves of its privileges, then the city must continue to assess the property as if it was not exempt, and itself assume the payment of the assessments ; and not having done so, the plaintiff is entitled to relief. 5. The petition clearly shows that this commutation and exemption of the lots of Lucas and others operates and must continue to operate to the injury of plaintiff. How far it was detrimental, it was not in the power of the plaintiff to state in dollars and •cents. It is shown that property liable to the sewer tax, in amount equal to the value of the improvements put upon the lot of Lucas, was illegally exempted from the tax for the whole period that it should continue to be imposed. It is no answer to say that possibly, by a change of circumstances-, it may happen that no injury will be done. According to this idea, the plaintiff would be entitled to no relief, however illegal the exemption is, until it could be shown, at the final winding up, mathematically, what injury he had sustained, and then he would be precisely in the situation where he could obtain no relief.- 6. The plaintiff is entitled to have relief, although he does not in his petition show to what extent the assessment is illegal, nor offer to pay such proportion of the amount assessed as may be legal. It is beyond his power to say what the legal assessment should be. It is for the city to make a legal assessment, and until this is done, no lien can be enforced against the plaintiff’s property. 7. There is no public inconvenience or damage occasioned by compelling the city to carry out the plain provisions of the act, and it is perfectly in the power of the city yet to do so. If the 9th section of the ordinance is a nullity, all that the city has to do is, to return to those who have availed themselves of its privileges the money paid and interest, and then it can treat their property as if no such privilege had been given them. IE the composition is binding on the city, then it can continue to assess the property as above suggested, and itself assume the payment.
   Scott, Judge,

delivered the opinion of the court.

In March, 1849, the general assembly of Missouri passed an act to provide a general system of seAverage in the city of St. Louis. This act, among other things, provided that the city should be laid off into districts, to be drained, and that, on the presentation of a petition of the majority of the OAvners of real estate within any district, the mayor and council should have power to borrow any sum of money necessary to construct sewers in sucb district, and to issue the bonds of the city for the same, to be paid (principal and interest) by a tax to be levied on the real estate within such district. The tax to be laid was not to exceed one half of one per cent, per annum on the assessed value of the real estate, and was to be levied and collected annually, and to be a lien on the estate, and was not to be repealed or altered until the debt created for the district was paid.

In pursuance of this act, the city, in July, 1850, passed an ordinance providing for the creation and management of a common sewer fund. This ordinance provided for borrowing money to construct' sewers, and ordained, by its 9th section, that whenever, on account of any lot within any sewer district, such amount of money -as will bear the same proportion to the total amount of debt appearing on the account of said district, as the assessed value of the lot for the preceding year bears to the assessed value of the whole district, shall be paid into the city treasury, such amount shall be credited on said account, and such lot shall be exempt from further taxation on account of the debt then existing.

Afterwards, a sewer district was created, running from the river west to Sixth street, embracing one half of the squares on each side of Chesnut street. Within this district, the plaintiff, Daniel D. Page, had improved real estate, subject to the sewer tax. Within the same district, James H. Lucas had real estate subject likewise to taxation. With respect to this property Lucas availed himself of the 9th section of the ordinance above recited, and paid such a proportion of the sewer debt of the district as the assessed value of his real estate bore to the assessed value of the entire district. Afterwards, Lucas made improvements on his real estate, situated within the district, which it is alleged greatly enhanced the value thereof, probably to near double its value without the improvements. Since the commutation made as above stated, Lucas’ property has ceased to be taxed on account of the sewer debt of the district. The property of the plaintiff was assessed- for the year 1852, at one half of one per cent, on its assessed value, amounting to $125 84, and it is now advertised for sale for tbe taxes for said year. The property of the plaintiff-, for the year 1850, was assessed at one per cent., double the amount that by law it could be taxed, which he, under a mistake, paid at the time, but which he has found since to be incorrect.

On this state of facts, the plaintiff maintains that no lien has been created on his real estate within the district for the sewer tax, by reason of the 9th section of the ordinance above mentioned being in violation of the act of the general assembly authorizing the city to provide a fund for constructing sewers, and consequently void. He therefore prays an injunction to restrain the sale of his real estate, and that the excess of tax paid for the year 1850 may be refunded to him.

To this bill, there was a demurrer filed, which being overruled and no answer being filed, a judgment was rendered perpetua-, ting the injunction.

The plaintijff withdrew so much of his petition as sought a recovery of the excess of the tax due for the year 1850.

Two of the grounds of the demurrer to the bill are, that it shows no ground for an injunction, and that, from the facts as stated by the plaintiff, it does not appear that he will sustain any injury by the action of the city authorities.

1. We are impressed with a sense of the great inconvenience that would result from establishing it as a principle, that a court would be warranted in arresting the exercise of the municipal authority of a city, on the ground of the incompatibility of one of its ordinances with its charter. Our system of jurisprudence would be deemed defective, indeed, could it not redress the grievance of a private individual without inflicting so great a public injury.

We are not prepared to say that the 9th section of the ordinance above cited is void, as being contrary to the provisions of the act of the general assembly relating to sewers in St. Louis. Its policy depends on considerations which are not disclosed by this record. It is easy to imagine a state of things that would render such a provision as is contained in the section o£ the ordinance under consideration, highly expedient. As the sewers were to be built with borrowed money, a provision increasing the certainty of the means to meet the semi-annual interest, would have an influence on the price of the bonds in the market. Whether, upon the whole, the ordinance is not beneficial in its operation, we cannot see. It does not appear to have been repealed, so' as to prevent others from availing themselves of it. Whether the entire sum paid by Lucas was as valuable as the annual payments he would have been required to pay, had he not availed himself of the 9th section of the ordinance, is not shown. There was a necessity for the present payment of a portion of the sewer debt, otherwise the ordinance would not have been passed. Whether the benefit derived thereby would exceed the difference between a tax on the property of Lucas, as improved and unimproved, we have no means of determining. A large municipal body, entrusted with the execution of a power, must be allowed some discretion in the choice of means, unless it appeal’s that it was plainly intended to confine it to a prescribed mode. The provision that the tax should be annually levied could not have been designed to prevent the city from accepting a present sum, for the annual assessments, as they would become due. If the operation of the 9th section of the ordinance had been beneficial in all the other districts of the city, would it be void, merely because, in a single instance, it had been advantageous to an individual ?

The case, as stated, does not show that the plaintiff has sustained any injury, nor does it appear that he will sustain any by the collection of the sewer tax for 1852. Lucas paid a.sum of money into the city treasury as an equivalent for the yearly assessment that would have been due by him to the sewer district. If that sum be distributed among the years that have passed, including 1852, and his real estate be assessed at its improved value, it will not appear but that, of the sum paid there is enough left to satisfy his sewer tax for 1852. The money o£ Lucas for the tax is in the city treasury. Now if he is as yet in advance of all other tax payers, until he actually falls behind, they have no cause to complain. But if Lucas should be in arrear, does it follow that the plaintiff would have a right to arrest the collection of the tax due by him. He is not assessed to a greater amount than the city had authority to impose. The 9th section of the ordinance may be void, and all the rest of it valid. One section of a law may be unconstitutional, while all the remaining sections will be enforced. The petition can only be sustained, on the principle that the passage of an ordinance in violation of a city charter would give to its citizens a right to arrest all its proceedings — to suspend the exercise of its franchise. This is not law. The right-of a corporation de facto will be enforced. It is no defence to» the claim of a corporation, that it has violated its charter.

The other judges concurring, the judgment will be reversed, and the petition dismissed.


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    Christy’s Administrator, Appellant, vs. The City of St. Louis, Respondent.
    1. Walker v. The City of St. Louis, 15 Mo. Hep. 563, affirmed.
    2. A municipal corporation has capacity to take personal if not real property, unless restrained hy its charter. So, a party who has voluntarily paid to-the city of St. Louis illegal taxes assessed under color of law, cannot maintain an action to recover them hack, on the ground that the city has no-capacity to take money which it has no right by charter to demand. >
    3. The same principle applies to an administrator who voluntarily pays illegal taxes upon the estate of his intestate, as to a person acting for himself-Neither can maintain an action to recover back.

      Appeal from St. Louis Court of Common Pleas.

    This was an action brought by the administrator of William' Christy to recover back taxes paid by him and a preceding administrator to the city of-St. Louis, beyond one-sixteenth of one per cent, per annum,"upon real estate of their intestate, situate in what was known as tbe new limits, brought into the city by the charter of 1841. The facts are the same as in the case of Walker v. The City of St. Louis, 15 Mo. Eep. 563. The court below gave judgment for the defendant, from which the plaintiff appealed. The cause was submitted on written arguments by Mr. Reynolds for appellant, and Mr. Dayton and Mr. Gantt for respondent.

      Mr. Reynolds., for appellant,
    argued the following points : 1. The city of St. Louis has no capacity to receive or retain money for taxes not authorized by its eharter. One paying, under a mistake of law, money to a natural person, may not recover it back, as there is in him the legal and natural capacity to give, and in the person paid, a legal and natural capacity to take. But a corporation has no natural capacity to take, and .its legal capacity to take and hold is to be judged of by its ■charter. (First Inst. 263, a, 264, b. 1 Thomas Coke, p. 193-4. As to the capacity to take real estate: Jackson v. Hartwell, 8 Johns. 422. First Parish 'in Sutton v.' Cole, 3 Pick. 232. Weston v. Hunt, 2 Mass. 502. Lumbard v. .,Aldrich, 6 N. H. 269. Lessee of Knowles v. Beatty, 1 JVIcLean, 41. Green v. Seymour, 3 Sandf. Ch. Rep. 285. Beatty v. Lessee of Knowles, 4 Peters, 152. As to personal ■estate : State v. Granville Alexandria Society, 11 Ohio, 1. Blair v. Perpetual Ins. Co., 10 Mo. 559. Bangor Boom Corporation v. Whiting, 29 Maine (16 Shepley,) 123. Farmers’ Loan & Trust Co. v. Canal, 5 Barb. Sup. C. ’Rep.. 613. McCidlough v. Moss, 5 Denio, 567.) But as tfhe city has the physical and legal capacity to have the custody •of money thus put into its coffers, the law will imply a promise .and impose an obligation to refund. (Stone v. Berkshire iCong. Society, 14 Yermont, 86. Bates v. State Bank, 2 ,-Ala. 451. Thayer v. Boston, 19 Pick. 511. Garrett v. ■Andover, 21 Yermont, 343. 5 Barb. Sup. C. Rep. 79.) 2.
    The money paid to the city by Christy’s administrators was a trust fund, which may be followed into the hands of any one receiving it with a knowledge of its misapplication. This whole transaction was a devastavit. If the present administrator cannot recover back the taxes paid by himself, he can at least those paid by the former administrator. (Story’s Eq. Jurisp. §1257 and authorities there cited. Claris v. Hougham, 2 B. & 0. 149.) 8. The ordinance being void in part is void in toto, and plaintiff should recover back the whole tax. (5 Barbour’s S. 0. Rep. 613. .Ashville v. Means, 7 Iredell, 406. Drew v. Davis, 10 Yerm. 506. Hase v. Merriam, 2 Greenleaf, 375. Elioett v. Shaw, 1 id. 389. Stetson v. Kempton, 13 Mass. 272. Bangs v. Snow, 1 Mass. 181. Dillingham v. Snow, 5 Mass. 547. Libby v. Burnham, 15 Mass. 144.)

      Mr. Dayton and Mr. Gantt, for respondent,
    relied upon Walker v. The City, 15 Mo. Rep. 563, and cited the following additional authorities : Smith v. Readfield, 27 Maine, 145. Hemingway v. Machias, 33 Maine, 445.
   Scott, Judge,

delivered the opinion of the court.

This action is founded on the state of facts that existed in the case of Walker v. The City of St. Louis, 15 Mo. Rep. 563, and grows out of the acts of the city, therein detailed.

The argument addressed to the court, founded on the incapacity of the city, as a corporation, to take and retain the money, the subject of this suit, is unsupported by authority, as by the common law, corporations, as an incident, possess the power to take and hold property, real and personal. The mort-main acts, if they are in force here, will not affect this question, as they do not extend to personalty. Restraints on this incident of corporations may be imposed by the express words of their charters, or by implication, but there is nothing in the-charter of the city of St. Louis that can affect this question.. Nor is the point in the case affected by the consideration, that-the money was paid by an administrator. No reason can be.* perceived, why the case of an administrator should be different, from that of any other individual. Under the circumstances, it would hardly be maintained, that he committed a devastavit in paying the taxes demanded by the city.

It cannot be disguised that the question involved in this controversy has received different determinations in the courts of the states of the Union. The view entertained by this court, when the point was presented in the case of Walker v. The City of St. Louis, derives confirmation from the cases of Hemmingway v. Machias, 33 Maine Rep. 445, and Smith v. Redfield, 27 Maine Rep.

The other judges concurring, the judgment is- affirmed.


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    Calvert, Respondent, vs. Rider & Allen, Appellants.
    I. The satisfaction of a judgment for the value of a slave carried out of this state by a boat, recovered in the statutory action, against the master or owner, or against the boat itself, (R. C. 1845, tit. Slaves, art. 1, secs. 31, 32,) is no bar to the common law action by the owner against all those concerned in removing the slave. But a recovery and satisfaction under one section of the statute is a bar to a recovery under the other section.
    ''2. The clerk of a boat, who received the passage money from a slave, carried out of the state under circumstances which would make the master liable as a trespasser, may, in the absence of further proof, properly be found to have assented to the trespass.

      Jl'p'pcal from St. Louis Court of Common Pleas.

    This was an action against Rider, the master, and Allen, the ■clerk, of the steamboat Timoleon, to recover damages for a trespass in transporting a slave of the plaintiff out of the state of Missouri, whereby the slave was lost.
    The cause was submitted upon the following agreed facts *. In the fall of 1849, the plaintiff’s slave came on board the steamboat, took passage for some point on the Illinois river, paid his passage money to Allen, the clerk, and went up the river on the boat to the point of his destination. Both Rider, the master, and Allen, the clerk, knew that the slave was going on the boat. Before this suit was begun, the plaintiff brought a suit in rem against tbe steamboat for taking the slave, and recovered judgment for his value, which had been satisfied.
    Upon these facts, the court below gave judgment for the plaintiff for the value of the slave, from which defendants appealed.
    Mr. Shepley, for appellants,
    relied upon these points: 1. The recovery and satisfaction in the suit of the same plaintiff against the steamboat Timoleon, is a bar to this action. The statute is a penal one, and is to be construed strictly. The words, “ without prejudice to any right of action at common law” must be construed as merely intended to give the owner of the slave a choice of remedies. 2. If even a recovery can be had in this case against Rider, the master, Allen, the clerk, is not liable either by the statute or at common law. It is the business of the master, not of the clerk, to decide who is to go on a boat.
    «#. II- Buchner, Glover & Richardson, for respondent.
   Gamble, Judge,

delivered the opinion of the court.

1. The principle question discussed in this case is, whether the owner of a slave, after he has recovered judgment and obtained satisfaction, in an action against a steamboat for the transportation of his slave out of the state, can maintain an action at common law against those who were concerned in removing the slave from the state.

The 31st section of the act concerning slaves, (R. C. 1845, p. 1018,) gives to the owner of a slave transported out of the state,' or from one point to another, within the state, on board of any boat or vessel,-a right to sue the master, commander or owner of the vessel, in an action of debt. The section declares that the master, commander or owner " shall forfeit and pay the value of such slave to his owner, to be recovered by action of debt, without prejudice to the right of such owner to his action at common law.”

The 32d section provides that any boat or vessel used in navigating tbe waters of this state, whose master, owner or commander shall violate the preceding section, shall be liable to the same extent that such master, owner or commander is, and then gives the means of redress under the act concerning boats and vessels, “ without prejudice to any right of action at common law.”

The plaintiff has recovered judgment against the steamboat Timoleon for the value of his slave, and sues in this action at common law again to recover the value.

The statute,.in each of the sections, imposes a penalty ; in the 31st, on the master or owner ; in the 32d, on the boat. The recovery and satisfaction of either of these penalties, under either section, will bar the recovery of the penalty under the other. 'But the recovery and satisfaction, under either section, is no bar to the recovery in a common law action of trespass ; for the statute so declares. The measure of recovery, under either section of the statute, is the value of the slave, although his owner may have retaken him without much • expense or loss of time. The recovery in the action at common law is to be for the damages sustained by the wrongful act in taking the slave away, and in flagrant cases of wrong, such smart money as may be reasonable. The statute was designed to make those who are engaged in the navigation of the waters of our state, and who have peculiar facilities for removing slaves, liable for a penalty for such removal in their vessels ; while they remain liable, in common with all other persons, for damages occasioned by trespasses. The recovery against the steamboat was no bar to the recovery against those who committed the trespass.

2. It is insisted that, as the defendant, Allen, was only clerk of the boat, and only received the passage money from the slave for taking him to some point in Illinois, he is not liable to this action. But if a trespass was committed by taking away the property of the plaintiff, it would appear to be proof of very clear assent to the act of trespass, that he should receive the pay for doing the act. At least, without some evidence showing that be waS under some compulsion, the conclusion is altogether proper, that he assented and thereby became liable as a trespasser. The judgment is, with the concurrence of the other judges, affirmed. '


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    The City of St. Louis, Respondent, vs. Shands, Appellant.
    1. Under ordinance No. 3037 of the city of St. Louis, approved July 29, 1853, supplementary to ordinance No. 2952, approved January 7, 1853, flour manufactured in the city was not required to he submitted for inspection before sale.

      Jipp'eal from St. Louis Criminal Court.

      C. G. Mauro and E. W. Shands, for appellant.

      Joseph Jecho, for respondent.
   Ryland, Judge,

delivered the opinion of the court.

The city council of the city of St. Louis passed an ordinance which was approved January 7,1853, by which the third article of an ordinance, No. 2381, “establishing and regulating the inspection department,” was repealed, and the following provisions adopted in lieu thereof :

[No. 2952.]

Seo. 1. It shall be the duty of the inspector of flour to weigh, inspect and determine the quality, according to the grade herein established, of all flour brought to the city of St. Loliis, by steamboats, k®sl boats, flat boats, wagons or otherwise, and which is not to be shipped beyond the limits of the city. He shall brand all barrels and half barrels inspected by him, with the grade to which they belong, and the weight thereof ; to register, in suitable books, all inspections made, with the date and number, and quality of the barrels and half barrels.

Sec. 2. The following grades of flour, offered for sale within the city, are hereby established, and the inspector shall brand each barrel or half barrel, according to the grade to which it belongs : First, flour of the first quality shall be styled “ extra superfine;” second, flour of the second quality shall he styled “ fancy or superfinethird, flour of the third quality shall be styled “fine;” fourth, flour of the fourth quality shall be styled “middlings;” fifth, flour below the fourth quality, shall be styled “ ship stuff.”

Sec. 8. Every barrel, containing flour offered for sale within the city, shall be made of good, seasoned timber, and shall be hooped with ten round, or six flat hoops, with at least four nails in each chime hoop, and three in each bilge hoop. The staves of a whole barrel shall be twenty-seven inches long, diameter of the head seventeen inches; the staves of a half barrel shall be twenty-two inches long, and the diameter of the head thirteen inches ; each whole barrel shall contain one hundred and ninety-six pounds of flour, and each half barrel ninety-eight pounds of flour.

Sec. 4. Every manufacturer of flour shall brand or mark one head of each barrel with the name in full of the mill at which it was manufactured, or with the name of the manufacturer, and the tare or weight of the barrel; and said brand or mark shall be put on with paint, in a durable manner, so as hot to be easily defaced ; and any barrel or half barrel made as aforesaid, the dimensions being as aforesaid, and marked or branded as aforesaid, shall be deemed “ merchantable.”

Sec. ‘5. The inspector shall not brand any barrel or half barrel not “merchantable” as aforesaid; provided, however, if the owner, or agent shall make such barrel or half barrel “merchantable,” then he shall brand the same.

Sec. 6. The inspector, in his inspection, shall use a barrel auger not exceeding seven-eighths of an inch in diameter, with which he may bore into each barrel not more than twice, to satisfy himself of the quality of the flour.

Sec. 7. The inspector shall brand upon the head of each barrel or half barrel by him inspected, in a legible manner, tbe quality of tbe flour, tbe weight thereof, with “Inspected, St. Louis, Mo.”

Sec. 8. Whoever, in this city, shall submit for inspection or sale, or sell or offer for sale, any flour in barrels or half barrels, in which there is a mixture of corn meal or other substance, or shall sell or offer for sale any barrel or half barrel of flour, wherein the quantity of flour is less than hereinbefore required, shall forfeit and pay not less than fifty cents nor more than five dollars for each and every barrel or half barrel presented for inspection, sold or offered for sale.

Approved January 7, 1853.

This ordinance failed to make the selling of flour, without first causing it to be inspected, an offence. To remedy this, a supplementary ordinance (No. 3037) was passed, approved July 29, 1853. The first section of this last ordinance declares, “ that whoever, in this city, shall sell or offer for sale any flour, in barrels or half barrels, without the same being first submitted for inspection, as provided in the ordinance of which this is amendatory, shall forfeit and pay to the city fifty cents for each and every barrel and half barrel so sold or offered for sale, on conviction before the recorder.”

The first section of ordinance No. 2952 makes it the duty of the inspector of flour to weigh, inspect and determine the quality, according to the grade established by that ordinance, “ of all flour brought to the city of St. Louis by steamboats, keel boats, flat boats, wagons or otherwise, and which is not to be shipped beyond the limits of the city.”

In this case, the following statement of facts, agreed upon by the parties, was submitted to the court below :

“It is agreed between the parties, plaintiff and defendant, that defendant is a miller, manufacturing flour in St. Louis city ; that defendant sold two barrels of flour manufactured by him in St. Louis city for consumption in said city, without having the same inspected.” Upon this state of the facts, the court found for the plaintiff, and gave judgment accordingly.

1. In the opinion of this court, the facts, as agreed upon, do not warrant the judgment of the court below. There being in the ordinance No. 2952 no requisition on the owners to submit their flour for inspection, no penalty for failing to submit it for inspection, no penalty for selling or offering to sell it, the supplementary ordinance was passed. This requires the flour-to be submitted for inspection, as provided in the ordinance No. 2952. Now this supplementary ordinance must be looked to and considered as part of ordinance No. 2952, and then we shall see what flour is to be inspected. All flour brought to the city by steamboats,” &c., which is not to be shipped beyond the limits of the city. The ordinance No. 2952 required duties to be performed by the inspector, but omitted to require duties of the owners, which were necessary to the performance of those on the part of the inspector. Now the question occurs, what flour must the owners submit to inspection? The answer is, such only as is'required by ordinance No. 2952. That requires of the inspector that he shall inspect certain flour ; that is, flour in barrels or half barrels, brought to the city by certain modes. It does not embrace flour manufactured in the city, nor do we think the supplementary ordinance can be properly construed to embrace it. Whoever shall sell any flour, the inspection of which is provided for in ordinance No. 2952, without having it inspected, becomes liable to the penalty. We must, therefore, see what flour was to be inspected under the ordinance No. 2952, before we can inflict the penalty.

There can be no doubt that the agreed statement of facts does not include flour brought to the city; and it is equally as clear, that flour manufactured in the city was not designed to be included in ordinance No. 2952.

The judgment of the court below is erroneous. It should have been for the defendant. It is therefore, with the concurrence of the other judges, reversed.