author: GRAVES, J.

text:
    SCHOOL DISTRICT NO. 3, TOWNSHIP 45, RANGE 6 EAST, OF ST. LOUIS COUNTY, SCUTTON et al., Directors, Appellants, v. OELLIEN et al.
    Division One,
    February 26, 1908.
    1. SCHOOL DISTRICT: Condemnation: Necessary Vote. In a condemnation proceeding by a school district to acquire ■ additional ground for a schoolhouse site, under a statute (Sec. 9772, R. S. 1899) providing that “whenever a majority of the qualified voters and taxpayers of any school district, at any annual or special meeting called for that purpose, shall determine that it is necessary to have additional grounds,” etc., it is necessary that a majority of the qualified voters and taxpayers of the district, and not simply a majority of those present and voting, shall vote for the proposition. The words “at any annual or special meeting called for that purpose” do not qualify the word “majority,” but indicate the time when such meeting may be held.
    2.. -: -: Majority of District. Until a majority of the qualified voters and taxpayers of a district, and not merely a majority of those present and voting, authorize the condemnation of land for an additional schoolhouse site, the board of directors have no legal right to bring condemnation proceedings for that purpose.
    3. -: -: -: Petition: Motion to Make Definite. Where it cannot be determined from the petition to condemn land for an additional schoolhouse site, whether the plaintiff meant that a majority of the qualified voters and taxpayers of the district, or a majority of those present and voting, had authorized the proceeding, the defendant’s motion to make more definite and certain should be sustained, and if sustained, and plaintiff refuses to plead further, the proceeding should be dismissed.
    Appeal from St. Louis County Circuit Court. — Ho». Jno. W. McEVhmney, Judge.
    Affirmed.

      B. H. Stevens for appellants.
    . (1) The petition is in the words of the statute, so far as the allegation complained of is concerned, and is sufficient. Sec. 9772, R. S. 1899. (2) “A majority of the qualified voters and taxpayers of any school district, at any annual meeting,” means a majority of the qualified voters and taxpayers of any school district present and voting at any annual meeting, and not a majority of the qualified voters and taxpayers of the district, as contended for by respondent. Richardson v. McReynolds, 114 Mo. 641; Walker v. Os wo old, 68 Md. 146; Richer v. Comm’rs of Town of Beaufort, 70' N. C. 110; State ex rel. v. St. Joseph, 37 Mo. 270; State v. Binder, 38 Mo. 450; Russié v. Brazzell, 128 Mo. 109; Vance v. Austell, 45 Ark. 400; Peoples v. Wiant, 48 111. 263; In re County Seat of Linn County, 15 Kan. 500; Railroad v. Davidson County Court, 33 Tenn. 637. The case of Richardson v. McReynolds, supra, is practically decisive of the point at issue.

      Wm. F. Broadhead for respondents.
    (1) That portion of plaintiffs’ petition, referred to in the motion to make more definite and certain, is vague, uncertain, and susceptible of two constructions. It may mean to allege that a majority of the qualified voters and taxpayers were at said annual meeting, and such majority voted in favor of said proposition; but from the language used, and the connection in which it 'is used, it is by no means certain that it is intended to aver that a majority of the qualified voters and taxpayers of the district determined by their vote that it was necessary to have additional grounds; and we are forced to the conclusion that such was not the intent of the averment, from the labored argument of counsel for appellant," to sustain the proposition that it only requires, under the statute and decisions, a majority of those voting at the meeting. Or that portion of the petition may mean to aver that a majority of the voters and taxpayers, who were at the meeting and voting, determined by their vote that it was necessary to have additional grounds, and this seems more likely the intent of the averment, because the burden of the argument of counsel was to sustain this, proposition, and the language and connection point rather to this intent than to the intent first suggested. But it is manifestly uncertain and not clearly shown, upon the face of the averments, which proposition the pleader meant to assert and rely on. This, the defendants were entitled to know, so as to have the privilege, before their property is taken, to raise such questions of law or fact, upon the pleadings, as might be necessary to protect their interests. Sec. 610, R. S. 1899; MacAdam v. Scudder, 127 Mo. 345. (2) Section 9772, Revised Statutes 1899, under which this proceeding was commenced, requires that only a majority of all the qualified voters and taxpayers of the district have the power to determine whether it is necessary to have additional grounds for school purposes; and this determination may be manifested at the annual meeting or at a special meeting called for that purpose. This section is perfectly plain in its terms. State ex rel. v. Francis, 95 Mo. 50 ; State ex rel. v. Harris, 96 Mo. 29; Webb v. Lafayette Co., 67 Mo." 353; Ranney v. Bader, 67 Mo. 476; State ex rel. v. Walker, 85 Mo. 41; State ex rel. v. White, 162 Mo. 533. (3) The exercise of the right of eminent domain must be construed with the utmost strictness. State ex rel. v. School Dist., 79 Mo. App. 109.
   GRAVES, J.

This action is one brought by a school district in St. Louis county, being joined therein by its board of directors, the purpose of which is to condemn for school purposes a small tract, of land adjoining the present schoolhouse site. The petition recites the various steps taken to get an expression of the qualified voters and taxpayers of the district upon the proposition of , acquiring this additional land. The proposition was submitted and voted upon at the annual school meeting. The petition then contains the following averment:

‘ ‘ Plaintiffs further state that the clerk of said district posted notices containing said proposition in five public places in said district on the 18th day of March, 1905, being fifteen days before said annual meeting held on April 4, 1905, at the school house in said district, and a majority of the qualified voters and taxpayers of said school district, at said annual meeting, voting by ballot, voted in favor of said proposition and the said proposition was announced by the chairman of said annual meeting as carried.”

The petition then concludes with other proper allegations, and no part thereof is challenged except the portion above quoted.

To this petition, the defendants filed a motion to require plaintiffs to make .their petition more definite and certain, which motion is thus stated:

“Now come Johanna C. C. Helmring, Lizzie Oellien, John Oellien, Henry Oellien and Fred Oellien, defendants, by their attorney, and move the court to require the plaintiffs to make more definite and certain the following portion of plaintiffs’ amended petition, on the second page thereof, and eighth line, to-wit: ‘And a majority of the qualified voters and taxpayers of said school district, at said annual meeting, voting by ballot, voted in favor of said proposition (meaning the proposition to acquire additional grounds as necessary for school purposes), and the said proposition was announced by the chairman of said annual meeting as carried, ’ for the reason that said words and portion of said petition are indefinite and uncertain in meaning, and defendants are unable to know or understand from said clause whether it is intended thereby to ayer that a majority of the qualified voters and taxpayers of said district, actually and only voting at said meeting, voted in favor of said proposition, or whether it is intended thereby to aver that the said qualified voters and taxpayers voting at said meeting for said proposition, constituted, and were in fact a majority of all the qualified voters and taxpayers of said school district whether voting or not. ’ ’

The foregoing motion was by the trial court sustained and the plaintiffs refusing to plead further, the court dismissed plaintiffs’ petition, refused to appoint commissioners and entered judgment for the defendants. After timely but unsuccessful motion for a new trial, plaintiffs in due course of time perfected their appeal. Such is the case for determination here.

This, action is bottomed upon the last clause of section 9772, Revised Statutes 1899, which reads:

“And whenever a majority of the qualified voters and taxpayers of any school district, at any annual or special meeting called for that purpose, shall determine that it is necessary to have additional grounds for school purposes, then the board of directors may proceed to condemn and pay for any amount of land adjacent to the schoo-lhouse site, as provided in this section.”

In fact there is no authority in law for the condemnation of additional land adjoining a schoolhouse site, other than the statute hereinabove set out. The numerous allegations of the petition in question show an attempt, at least, to comply with the statute. The first and vital question to be determined is the meaning of the words “majority of the qualified voters and taxpayers of any school district,” in the connection in which it is used. Do these words in this connection mean a majority of all the qualified voters and taxpayers of the district, whether present or absent at the time the vote is taken, or do they mean a mere majority of such qualified voters and taxpayers as are present at the time or meeting where the proposition is voted upon and determined? We think these words in the connection used mean that the proposition must receive a majority of all the qualified voters and taxpayers of the district, and that a mere majority of all those present, unless it also he a majority of all the qualified voters and taxpayers of the district, is insufficient. It will be noticed that between two commas, the following phrase is thrown in, ‘ ‘ at any annual or special meeting called for that purpose.” If this phrase were left out there would be no question, for the clause would then read, “"Whenever a majority of the qualified voters and taxpayers of any school district . . . shall determine,” etc. To our mind the phrase omitted refers to the time and place when and where the fact whether or not a majority of the qualified voters and taxpayers of the district are in favor of the proposition shall be ascertained and that it was not intended to so modify the word “majority” as first used, so as to make it mean a mere majority of those present at the time and place indicated by the omitted phrase. It is quite clear that the legislative intent was to require the assent of a majority of all the qualified voters and taxpayers before the district could be subjected to the expense and damages resulting from a condemnation proceeding. By the phrase last above omitted from our quotation, it was intended to fix a time and place for procuring this assent, i. e., either at an annual meeting or at a special meeting called for that purpose.

It was not intended by the Legislature that, if there were only three presept out of forty voters and taxpayers, the majority of those present at such meeting could fix this burden upon the school district. If such had been the intent it could have been easily and plainly expressed by saying that the result should be determined by a majority of those present and voting at such meeting.

The rule of construction is thus stated by Sherwood, J., in case of State ex rel. Wear v. Francis, 95 Mo. l. c. 51: “ The rule established in State v. Winkelmeier (35 Mo-. 103), is this: That when, by law, a vote is required or permitted to be taken, and a majority of the legal voters is mentioned in such law as- being necessary to carry the proposed measure, such majority must be a majority of all the legal voters entitled to vote at such election, and not a mere majority of those voting tliereat. This rule, thus laid down, has since become firmly established in the jurisprudence of this State. [State ex rel. v. Sutterfield, 54 Mo. 391; State ex rel. v. Brassfield, 67 Mo. 331; State ex rel. v. Mayor, 73 Mo. 435.] The case of State v. Binder (38 Mo. 450), is based upon its own peculiar facts, and is not, perhaps, to be regarded as shaking the authority of "Winkelmeier’s case, or of the other eases cited. And even were it to be so regarded, the well-settled rule laid down in the later cases referred to would still be regarded as better, safer and more sound. ’ ’

And to the same effect is the opinion of Valliant, J., speaking for the Court In Banc, in State ex rel. v. White, 162 Mo. l. c. 539, wherein it is said: “In State ex rel. v. Brassfield, 67 Mo. 331, it was held that the clause of the Constitution (sec. 14, art. 11, 1865) which declared that ‘the General Assembly shall not authorize any county, city or town to become a stockholder in . . . any . . . corporation unless two-thirds of the qualified voters of such county, city or town, at a regular or special election to -be held therein, assent thereto,’ meant all the legal voters in the county, city or town, and not merely all who voted. And it may be said that all the utterances of this court that bear on this question are to the same effect. [State ex rel. v. Mayor, 73 Mo. 437; State ex rel. v. Francis, 95 Mo. 44; State ex rel. v. McGowan, 138 Mo. 187.] ”

It will be observed that the constitutional provision under consideration, in the Brassfield case, supra, contains the phrase “ at a regular or special election to be held therein,” which is very similar to the phrase we have under consideration here and it likewise has the same situation in the statute.

We are, therefore, of opinion that the law requires a majority of the qualified voters and taxpayers of the district and not a mere majority of those present and voting. Until such majority is procured the board of directors have no legal right to proceed to bring condemnation proceedings under section 9772, supra.

Nor are we convinced that these views in any way conflict with those of Burgess, J., in Richardson v. McReynolds, 114 Mo. 641. The statute there under consideration was what is now section 9750, Revised Statutes 1899. It is totally different from the section we have under consideration in the present ease. Section 9750 reads: “The qualified'voters assembled at the annual meeting, when not otherwise provided, shall have power by a majority of the votes cast:” Following the above are eleven distinct clauses giving and enumerating the things which can be done by the vote first above mentioned in said section 9750. It will be noticed by a reading of the entire section that there is nothing providing for condemnation proceedings for additional grounds. This subject is only mentioned in section 9772 and must be governed by that section and not by section 9750.

II. Having reached the conclusion as above indicated as to the law, the next question is, does this petition upon its face appear to be indefinite and uncertain, and was the trial court right in holding it to be indefinite and uncertain upon the motion which it sustained? Counsel for appellant urges throughout his brief that it only required a majority of those present and voting to give authority to the board of directors to proceed with the condemnation proceedings. In so doing he practically concedes the correctness of the trial court’s action, if this contention as to the law is untenable. His contention is untenable as we have held. A reading of the portion of the petition which we have quoted, shows that it is uncertain as to whether the pleader meant a majority of the qualified voters and taxpayers of the whole district or a majority of such as voted at the election. If he meant the latter, then defendants could have successfully interposed a demurrer. If he meant the former defendants would be forced to answer. They were entitled to' know from the petition what pleading they must file. The purpose of defendants was no doubt to force this situation and they were entitled to it. The trial court was of the opinion that the petition was not sufficiently definite and certain upon the question raised by the motion, and in this opinion we concur. For these reasons, the judgment is affirmed.

All concur.


source: Caselaw Access Project

author: LAMM, J.

license: Public Domain

text:
    THE STATE ex rel. KARRENBROCK, Collector of St. Louis County, Appellant, v. MISSISSIPPI VALLEY TRUST COMPANY.
    Division One,
    February 26, 1908.
    1. TAXATION: Assessment: Constructive Notice. Where the tax was assessed to “Rehecka W. Briggs, T. T. Turner, trustee,” Turner’s executor is not to he held to have had constructive notice of the contents of the tax records of the county where Turner resided, since the taxes were not assessed in Turner’s name. “T. T. Turner, trustee,” may be considered as much a memorandum for the tax officials as anything else.
    2. -: Trust Estate: Death of Trustee. By will á testator left property in trust for Rehecka W. Briggs, to certain trustees and their successors, and on their refusal to qualify, Turner was appointed trustee, and died after the property was assessed “in the name of Rehecka W. Briggs, T. T. Turner, trustee,” but before the taxes were levied Turner died, leaving a will by which he named defendant as executor, and as such executor defendant came into possession of a part of the fund earmarked as a trust. Held, that defendant had a legal duty to perform in relation to the fund, namely,, as a kind of bailee, to preserve the fund intact for the true owner and to turn it over when trustees were appointed by a competent court, but the right to administer the estate did not continue to Turner’s executor, but vested exclusively in trustees to be appointed.
    3. -: -: Delegation of Trusteeship. Trust powers donated by will to named trustees and their successors cannot be delegated by the trustee’s will.
    4. -: -í Appointment of Trustee. Where the trust fund has come into the possession of the trustee’s executor, and he holds it until other trustees are appointed and is ordered by the proper court to turn it over to them and does so, he is stripped of the fund out of which the trustee’s estate, or he, could be reimbursed, had he paid taxes assessed against the trust estate.
    5. -: —--: Laches. The State’s demands for taxes cannot be defeated by the laches of its officers, yet it is not entirely without significance that an executor, who administered the estate of the trustee of the trust estate, against which the taxes were assessed, can be reimbursed for the payment of the taxes only under equitable doctrines and out of a trust fund; neither, on broad lines of natural justice, is it without significance that the State waited until the last day to sue the executor of the trustee for taxes due from the trust estate assessed before the trustee’s death but not levied until after his death, during which time the executor had, in obedience to an order of court, turned the trust fund over to trustees resident of another State, and had made final settlement of the trustee’s estate.
    6. -: Payment By Executor. Where personal taxes due from a trust estate were assessed before the trustee’s death but not levied until after his death, his executor is not personally liable for the taxes after, in obedience to order of court, he has turned over the trust fund to other duly appointed trus- . tees.
    7. -: Debts: Classification. For the purpose of allowance and classification taxes may be treated as a debt, and it is provided by Sec. 9246, R. S. 1899, that they shall be allowed against the estate the same as other debts, that is, by the judgment of the probate court.
    8. -: Sections 4259 and 4260: Insolvency. Sections 4259 and 4260, Revised Statutes 1899, apply only to insolvent estates. They do not hold liable, for taxes due from a solvent trust estate, the executor of the trustee’s estate.
    9. -: Trust Estate: Final Settlement of Trustee’s Estate. Even if the trustee’s estate were liable for taxes due from the trust estate — which is not conceded — the trustee’s executor, having made final settlement and been discharged without any presentation or allowance of the State’s claim for taxes, cannot be held personally liable for such taxes.
    10. -: -: Allowance. Taxes payable by the executor without allowance are those directly levied against the property of decedent.
    11. -: -: -: Payable By Trustee's Executor. The executor of the trustee should not be put to the hazard of personally and correctly settling the doubtful questions of law involved in paying taxes on a trust estate once held by his trustee, but not held or administered by the executor.
    12. -: Costs Against State: No Assignment in Motion. The judgment for defendant in a suit for taxes will not be reversed because it assesses costs against the State, if the trial court’s attention was not called to the error in the motion for a new trial and no motion in arrest was filed, but the judgment will be modified by eliminating that error.
    Appeal from St. Louis City Circuit Court. — Row. Walter B. Douglas, Judge.
    Modified and affirmed.

      E. Henry Wolfsberger and1. Henry Higginbotham for appellant.
    (1) While the State may present its claim for taxes, it is not compelled to do so; it is the duty of the executor to pay the taxes without any demand therefor being presented to the court for allowance. R. S. 1899', see. 184, subd. 3; secs.. 4259, 4260' and 9246; State ex rel. y. Tittmann, 103 Mo. 553, 119 Mo. 661; State ex rel. v. Burr, 143 Mo. 209; State ex rel. v. Donaldson, 28 Mo. App. 192; United States v. Hahn, 37 Mo. App. 584; Kansas City v. Simpson, 90 Mo'. App. 50; Bonaparte v. State, 63 Md. 465; United States v. Barnes, 31 Fed.. 705; United States v. Herron, 20' Wall. 251; State ex rel. v. Kenrick, 159 Mo. 631, distinguished. (2) The “executor, administrator or other person” becomes a trustee for the State and is bound to pay its debt as a preferred claim in the third class of demands. Such is the rigor of the statute that he cannot invoke the judgment of a court of competent jurisdiction directing him to distribute the assets to specified creditors as a justification, when it does not appear that the State was a party to the proceedings, or that he took the proper measures to secure the priority of the State in the distribution. R. S. 1899, secs, 4259, 4260; United States v. Barnes, 31 Fed. 707; In re Vetterlein, 44 Fed. 57; United States v. Herron, 20 'Wall. 251; Greely v. Bank, 98 Mo. 458; State ex rel. v. Burr, 143 Mo. 209; Kansas City v. Simpson; 90 Mo. App. 50; Bonaparte v. State, 63 Md. 465. (3) The doctrine of waiver, laches and estoppel cannot be invoked against the State. United States v. Barnes, 31 Fed. 709; United States v. Hoar, 2 Mason 314; Parkes v. State, 7 Mo. 194; Ray Co. v. Bentley, 49 Mo. 244; State ex rel. v. Tittmann, 119 Mo. 661; State ex rel. v. Fullerton, .143 Mo. 682. (4) The assessment books and tax books are public records, and as such are open to the inspection of all persons. And they impart notice to everybody of their contents. ' State ex rel. v. Reid, 159 Mo. 85; State ex rel. v. Fullerton, 143 Mo. 687; Fleckenstein v. Baxter, 114 Mo. 496; Bonaparte v. State, 63 Md. 465. (5) Executors and administrators are affected with notice of taxes due upon the property in their custody, whether assessed before or after the death of the testator or intestate. Bonaparte v. State, 63 Md. 465. (6) Taxes are debts within the meaning of sections 4259 and 4260, Revised Statutes 1899. R. S. 1899, sec. 184, subd. 3; Greely v. Bank, 98 Mo. 458; State ex rel. v. Tittmann, 119 Mo. 661; In re Vetterlein, 20 Fed. 109; United States v. Barnes, 31 Fed. 705, 44 Fed. 57; In re Kirk-, land, 2 Hughes (U. S.) 208; United States v. Bank, 6 Pet. 34. Whether taxes should be considered as an ordinary debt, or not so considered, can make no difference in the duty and obligation to the delinquént. Phelps v. Brumbach, 107 Mo. App. 25. (7) Where a statute creates a right (to a tax) and gives no remedy, the party may resort to the usual remedy applicable to such a case. State ex rel. v. Severance, 55 Mo. 389; State ex rel. v. Tittniann, 103 Mo. 568; Phelps v. Brumbach, 107 Mo. App. 25. Under the Federal statute (secs. 3466, 3467, R. S. U. S.) the “executor, administrator, Qr other person” is held to be a trustee for the United States, and the usual remedies of cestui que trust against trustee apply. United States v. Hoar, 2 Mason 311; Matter of Rosey, 6 Ben. (U. S.) 507; United States v. Bank, 6 Pet. 34; Greely v. Bank, 98 Mo. 458; United States v. Hahn, 37 Mo. App. 580;. (8) The statute makes no distinction between the case where the person assessed is the “owner” (that is, in his own right) of the property and where he has the “care, charge or management” of the same (as, for example, as trustee). R. S. 1899, secs. 9144, 9147, 9246; State ex rel. v. Burr, 143 Mo. 209; Kansas City v. Simpson, 90 Mo. App1. 50; Elevator Co. v. Traill County, 50 L. R. A. 266; Swarts v. Hammer, 194 U. S. 441. (9') A valid assessment is the jurisdictional matter in taxation. The statute, as to matters thereafter, is directory merely. When the assessments and levy are completed, the details relate back and take effect as of June 1st. State ex rel. v. Philips, 137 Mo. 264; State ex rel. v. Edwards, 136 Mo. 368; DeArman v. Williams, 93 Mo. 158; McLaren v. Sheble, 45 Mo. 130; Cooley on Taxation (3 Ed.) 604. (10) Neither the State, county nor the collector is liable for costs, nor can any be taxed against them or any of them. R. S. 1899', sec. 9246; Pollard v. Atwood, 79 Mo. App'. 193.

      Hamilton Grover for respondent.
    (1) Under the law of this State, a suit in the circuit court for a personal judgment for taxes on personal property can only be maintained against the “party assessed with the taxes.” The taxes here involved were assessed against “Rehecha W. Briggs, T. T. Turner, trustee.” The Mississippi Valley Trust Company is not.“the party assessed with the taxes” herein sued for. R. S. 1899, sec. 9246; State ex rel. v. Kenrick, 159 Mo. 631. (2) Relator bases his right to recover in this suit upon four sections of the statutes of this State, to-wit: section 184, sections 4259'-4260, and section 9246,' Revised Statutes 1899. If his construction of any one section is erroneous, this suit must fail. (3) The taxes which sec. 184, Revised Statutes 1899, make it the duty of an executor to- pay without being presented to the probate court for allowance, are taxes levied upon the property of the decedent during his lifetime, or accruing on his estate after his death, as distinguished from taxes levied after his death upon property in which he had no interest, but held merely as trustee. Langston v. Canterbury, 173 Mo. 135; State ex rel. v. Tittmann, 103 Mo. 553, 119 Mo. 665. (4) Sections 4259 and 4260 simply establish a priority of payment in cases of insolvency. They have no application whatever to an estate which, like Turner’s, was always abundantly solvent. United States v. Fisher, 2 Cranch 390 ; United States v. Griswold, 8 Fed. 502; United States v. Hooe, 3 Cranch 89; United States v. Wood, 28 Fed. Cases 753; United States v. Couch, 25 Fed. Cases 674; Prince v. Bartlett, 8 Cranch 434; United States v. Langton, 5 Mason 208; Conrad v. Ins. Co., 1 Pet. 438; Beaston v. F. B. of D., 12 Pet. 133; United States v. McClellan, 3 Sumn. 350; United States v. Canal Bank, 3 Story 81. (5) “Taxes” are not “debts” within the meaning of sections 4259-4260-, but even if they are, they must be limited (in cases of deceased persons) to taxes levied against the decedent in his lifetime or accruing on his estate after his death, as distinguished from taxes levied after his death upon property in which he had no interest, but held merely as trustee. Carondelet v. Picot, 38 Mo. 130; State ex rel. v. Snyder, 139 Mo. 553; Cooley on Taxation, p. 13; Bonaparte v. Maryland, 63 Md. 470; State v. Ruby, 77 Mo. 610. (6) The “taxes” herein sued for, even if a “debt,” were not a “debt” until they were levied, six months after Turner’s death; and therefore were not “a debt due from the deceased,” within the meaning of sections 4259 and 4260. Langston v. Canterbury, 173 Mo. 135. (7) Even if “taxes” are “debts” within the meaning of sections 4259 and 4260, there is nothing in those sections which waive the necessity of presenting them to the probate court for allowance in the case of deceased piersons. The only waiver in the statutes is in section 184, which does not apply, for reasons given under point 3. (8) Statutory provisions for the collection of taxes are exclusive. Sections 4259' and 4260 simply establish a priority of payment, and the means of enforcing that payment (where the debt claimed is a tax), are found elsewhere in the statutes ’and are exclusive. Carondelet v. Picot, 38 Mo. 130; State ex rel. v. Snyder, 139' Mo. 553. (9) Under no circumstances could the executor be liable under section 4260, unless •he had notice of the claim before distribution was made. The Mississippi Valley Trust Company had no notice of the existence of this claim until nearly a year after distribution and discharge. United States v. Barnes, 31 Fed. 705; United States v. Hahn, 37 Mo. App. 584; In re Vetterlein, 44 Fed. 57 ; Bonaparte v. State, 63 Md. 465.
   LAMM, J.

Judgment going in favor of defendant in a tax suit, plaintiff appealed. Defendant was sued in its individual capacity for the recovery of a personal judgment for taxes levied upon $142,760 of personal property for the year 1897. On that assessed valuation was levied $356.90 State and State interest tax, $713.80 county tax, and $499.66 school tax — aggregating $1,570.36. The case has troublesome and singular features.

The petition was filed on the 31st of December, 1902 — one day before the taxes became uncollectible by limitation (R. S. 1899, sec. 9246). After alleging relator was collector of the revenue for the county of St. Louis, that relator in writing appointed appellant’s counsel, Mr. "Wolfsberger, with the approval of the county court, tax attorney, that defendant was a domestic corporation organized under the laws of this State relating to the incorporation of trust companies and having its place of business in the city of St. Louis, the petition proceeds to charge that T. T. Turner was a resident of the county of St. Louis- on the first day of June, 1896, and either owned or had the possession and care, charge or management of personal property situate in said county of the foregoing amount, subject to assessment and taxation for the taxes and funds mentioned ; that said property was duly listed to him at said value in his name, as appears by a tax bill filed • and marked “Exhibit A;” that said taxes were duly levied and then extended in the tax books for the year 1897; that the collector made demand,of payment and'diligently used all lawful means to collect said taxes; that notwithstanding that fact he was unable so to do; that said taxes are contained and extended in the personal delinquent tax lists for said year, allowed to the then collector in his annual settlement next after the end of that year, and which lists were delivered to and are now in the hands of relator, as a succeeding collector, for collection; that T. T. Turner died on the 30th day of January, 1897, testate; that by his will defendant was nominated .executor; that said will was duly probated on the 5th of February, 1897, and said defendant presently qualified as executor and thereafter acted as such; that as such executor it paid debts other than said taxes; that such other debts were due and owing by said Turner in his lifetime and due and owing by his estate and belonged in tbe third and lower classification of demands against tbe estate; and that at tbe time of paying said other debts said executor bad ample assets in its bands to pay said taxes — all of which, with statutory penalties, interest, commissions and fees remain due and unpaid.

Wherefore, judgment was prayed for tbe amount of said taxes, with interest thereon from tbe first day of January, 1898, at one per cent per month, together with a collector’s statutory fee of fifteen per cent on tbe full amount of tax and interest, and an attorney’s fee of ten per cent for bringing tbe suit, and for all costs.

Exhibit “A” attached to tbe petition, is as follows:

“Personal Back Tax Bill.
“Statement of Delinquent Taxes on Personal Property, assessed in tbe County of St. Louis, in tbe State of Missouri, to and in tbe name of Rehecha W. Briggs, T. T. Turner, trustee, in Central township, for tbe year 1897, being all against tbe same person, in tbe names below stated, respectively:
“In the name of Rehecha Briggs, T. T. Turner, Trustee.
“State of Missouri, County of St. Louis, ss.
“I H. W. Karrenbroch, Collector of tbe Revenue within and for said County of St. Louis, in tbe State of Missouri, do hereby certify that tbe foregoing is a true and correct statement and' bill of delinquent taxes remaining unpaid on the personal property, assessed against Rehecha W. Briggs, T. T. Turner, Trustee, in said county, in the name or names as therein stated, and according to the Tax Books in my office, and the said taxes are due for the different years, to the several funds, and in the respective amounts as so above stated.
“In witness whereof, I have hereunto set my hand, this day of December 24, 1902.
“H. W. Kab.renbrock, Collector.”

It will serve no purpose to set forth the answer or reply. They may he summarized as carefully drawn pleadings, making certain charges and admissions, and were sufficient in form and substance to raise all issues presented on this appeal and to warrant the admission of all evidence introduced.

There is no dispute over the facts, summarized as follows:

Francis Whittaker died in June, 1871, testate— leaving a large estate and children — among them, Rehecha W., intermarried with one Briggs. Rehecha is the party referred to in the taxhill as “Rehecha W. Briggs.” By item 5 of his will, Mr. Whittaker bequeathed and devised to Girard B. Allen and Robert K. Woods, of St. Louis county, and to the survivor of them and their successors, trustees, with full power to sell, convey, dispose of, invest and reinvest and generally to manage the same, one-fifth of all his estate in value after paying his debts (less an advancement) in trust for Rehecha, and with directions for paying the income of the trust property as pointed out in item 5 of the will for her benefit. At her death, leaving heirs of her body, they were to pay the principal sum to them and be discharged of the trust. In default of such heirs then living, they were to pay over and convey the same to the right heirs of Francis Whittaker. Allen and Woods refused to act as trustees. In December, 1871, by appropriate proceedings in the circuit court of St. Louis' county, Oliver B. Filley and1 John Whit-taker were made trustees in their place and stead. They qualified and acted until in April, 1875. During that month by appropriate proceedings in the circuit court, Thomas T. Turner was appointed in their place and stead as trustee. Thomas T. Turner is the “T. T. Turner” mentioned in the “Exhibit A,” and he qualified and acted as trustee of the Briggs Trust Fund until the day of his death. At the time of his death about $55,000 of the fund were in his actual custody. Some of the fund was in a certain bank on deposit, and the larger portion seems to have been in the actual custody and keeping of a certain real estate company —in what form or why we may only guess. Turner died on the 30th of January, 1897. Pie was a man of independent means, leaving a large and solvent estate, many heirs and a will. By that will, defendant company was named as executor. Presently, his will was probated and defendant qualified as executor and thence forward assumed the burden of administration. On taking charge, it found among his papers a portion of the Briggs Trust Fund, as said. We do not understand that defendant charged itself in its inventory or appraisement with any of that fund, nor do we see in its settlements as executor that it so charged or credited itself. What it did was this: It preserved so much of the trust fund coming into its possession as executor, until such time as new trustees could be appointed under item five of the Whittaker will. . The record indicates, however, that in some way (not clearly disclosed) some of the trust securities in defendant’s custody were cashed before the fund was disentangled from the Turner estate, proper, and turned over to new trustees. In the April after the February in which defendant took charge of the Turner estate, Mrs. Briggs commenced a proceeding in tie proper circuit court, making tie trust company as executor and otiers defendants, tie object of which was tie- appointment of new trustees to succeed Turner in charge of tie custody of tie fund and an order requiring it to be turned over. Such steps were taken in tiat proceeding as resulted on June 7, 1897, in tie appointment of John O. Ropes and Roland W. Boyden (residents of Boston), as trustees, and authorized them to take charge of all tie property constituting tie trust estate and commanding defendant and otiers to turn it over. In pursuance of tiat order and appointment, tie defendant on June 18th, 1897, turned over .to Ropes and Boyden all tie property in its hands belonging to said trust, save and except $10,000. It seems tie latter sum was retained temporarily in order to ascertain what was due Turner for services as trustee and to disentangle the trust estate from his own estate Without loss to tie latter. Following tiat, on November 2, 1897, in accordance with a further order of tie circuit court in tiat case, the defendant turned over said remainder of tie trust fund, and received full acquittance, being discharged by tie court by due order entered in tie case from any liability as executor of Turner on account of tie Briggs Trust Fund. Defendant neither asked nor received any compensation for its temporary conservation of tiat portion of tie trust fund so coming into its hands and turned over. After turning it over to Ropes and Boyden, defendant administered tie Turner estate, advertised notice of final settlement, made full distribution in accordance with tie order of the probate court, and, on February 26, 1902, was finally discharged as executor and tie estate was closed. Going back a little, it was shown in evidence tiat tie taxes for 1897 were levied in tie month of August in tiat year, six months after Turner’s death, two months after Ropes and Boyden were appointed trustees and at a time -when the bulk of the trust estate had been turned over to them. The State of Missouri was not made a party to the proceedings in the circuit court, whereby Ropes and Boyd'en were made trustees, nor is it apparent how the sovereign State, without express provision of statute, could be sued. The order giving them the authority to receive and Turner’s executor authority to turn over, was made at a time when the taxes for the year of 1897 were not demandable. During the five years Turner’s estate was in administration the taxes in suit were never presented for allowance to the probate court. An attempt was made by plaintiff to- show that on March 10', 1899', actual notice was given by postal card to defendant company of the existence of the unpaid taxes in suit. Because no timely notice was given defendant to- produce such a card, its contents were not allowed to be put in by secondary evidence. On defendant’s part there was uncontradicted testimony that it had no- actual notice of the existence of those taxes. Plaintiff’s theory is that defendant, as executor of Turner ’s will, must be held to have constructive notice of the contents of the tax records of St. Louis county where Turner resided. The point is subsidiary, and to it defendant well replies that the taxes were not assessed in Turner ’s name but in the name of Rehecha W. Briggs — “T. T. Turner, trustee,” merely following her name possibly as a memorandum for the tax officials. It contends further and shows that it- diligently sought out and paid all taxes assessed against the name of T. T. Turner, for 1897 and all years during the administration.

At the close of the evidence, plaintiff asked a mandatory instruction in its own behalf, which instruction the court refused to give and plaintiff saved exception. Having taken time to consider, the court found the issues in favor of defendant, adjudged costs against plaintiff and ordered execution to issue. Before judgment was entered, plaintiff filed a “motion for judgment non obstante veredicto” in which for grounds it was stated that on the' entire record the finding was erroneous and should have been for plaintiff, because the answer stated no defense and amounted to a confession of plaintiff’s cause of action. This motion being overruled, plaintiff excepted and after an unsuccessful motion for a new trial brings the case here for review without a motion in arrest.

On this record can the judgment stand?

I. If the case be treated solely on broad lines of natural justice, it would seem put beyond question that the judgment was right; because:

If Turner had lived and paid the tax assessed against the Briggs trust estate, self-evidently he would have been entitled to have reimbursed himself out of that estate then in his hands. He died after the property was assessed for taxes but before the taxes were levied. His trusteeship died with him. The defendant as executor of Turner’s will came into actual possession of a part of the fund earmarked as a trust. Such trust property did not belong to Turner’s estate, proper, and, hence, was properly left off the inventory, appraisement and settlements of his executor. Nevertheless defendant had a leg'al duty to perform in relation to the fund so earmarked and coming into its hands. What was that duty? Obviously, as a kind of bailee, to preserve the fund intact for the true owner and to turn it over when trustees to hold it were appointed by competent authority under the fifth clause of the Whittaker will. [2 Woemer’s Law of Administration (2 Ed.), sec. 321.] Obviously, too, the duty and power of executing the trust created by Francis Whittaker’s will — the very right to administer the Briggs trust estate — did not continue a duty of Turner’s estate or pass from Turner to defendant as the executor of Turner’s will, but, as said, exclusively vested in trustees to be selected by proper authority; for we are taught in the hornbooks that- trust powers like those donated to Turner as successor in trust to the original trustees (Allen and Woods), could not be delegated by him by will, even had he undertaken to delegate them: Delegatusnon potest delegare. [1 Perry on Trusts (5 Ed.), sec. 287.] And whatever was the rule at common law, under our statutes the executor’s executor no longer represents the executor’s testator. [R. S. 1899, sec. 46; 2 Woerner’s Law of Administration (2 Ed.), sec. 350.]

Again: Before these taxes were demandable the defendant was put in bonds and tied hand and foot by the decree of a court of competent jurisdiction — i. e., it was bound by that decree to turn over every penny of the Briggs trust estate to Ropes and Boyden. It obeyed that order. It could do no' mere and no less. By obeying, it was stripped of the fund out of which it could reimburse the Turner estate, or itself, had it paid the taxes.

Again: While, as pointed out by plaintiff’s counsel, the State may not be defeated in its right by the laches of its agents and officers, yet is it entirely without-significance that no' demand was made upon defendant for the payment of these taxes while it was yet in possession of any'of the trust property? We do not say it had the personal duty to administer on the trust property, or voluntarily pay and dole it out on trust debts or taxes chargeable against it, but we do say this: It is plain that if it could be protected at all by way of reimbursement against the payment of these taxes, it would only be under equitable doctrines and out of the trust estate.

Moreover, no demand for the taxes in suit was presented to the probate court of St. Louis county for. allowance against the Turner estate itself during the five years it was under administration. During all those years, defendant seems to have been diligent in its duties as executor. All taxes of which it had notice, assessed and levied directly against the Turner estate, it sought out and paid. Its record as executor was under the scrutiny of the prohate court and passed muster in its judgment of final discharge. Having been discharged and having now no property in its hands out of which it can recoup the payment of the taxes in question, it must needs pay out of its own pocket, if at all.

In the condition of thing's shown by the premises, a question arises, seemingly answering itself by the asking, viz.:

Suppose Turner had not died and a court of equity had removed him in June, 1897, and taken the trust estate from him before the taxes were either levied, or demandable, would he remain personally liable for them? If the law be reason, would such be good law? If not, how much less will the law hold his mere executor personally responsible under similar conditions?

A further question arises, a modification of the former and suggesting its own answer, viz.:

Shall the law be so written that, on the one hand, it takes away from the executor the identical trust fund that should primarily respond to the taxes in question, and then, on the other, makes him pay them out of his private funds? If it were to be so written it would be a hard saying much murmured against. The office of executor would have perils hitherto unheard of, and, therefore, the case at bar is not one that strongly appeals to a sense of justice in a court. To the contrary, it is a case that, if Sustained at all, must be upon the strictest construction and nicest rigor of the written law alone, and that view of it .we will now examine.

H. Plaintiff relies on sundry statutes, viz.: Section 184 of the Administration Act, section 9246 relating to Revenue, and chiefly on the State’s lien created by sections 4259 and 4260 of the Revised Statutes of 1899. It is argued it was the duty of defendant as executor to pay the taxes in question without any demand being presented to it or to the probate court for allowance; that taxes are “debts” under section 4259 and 4260, supra, and that, all other means of collection failing, such taxes as “debts” due the State come within the purview of said sections 4259-60, creating a lien in favor of the State for certain classes of debts due it. It is argued, further, that in the absence of any statutory provision providing a remedy to enforce the State’s right under the last two sections, a remedy may he found in' the common law by ordinary suit. [State ex rel. v. Tittmann, 103 Mo. 553.] Appellant’s learned counsel has prepared an uncommonly ingenious brief in support of the contentions thus briefly outlined.

The questions presented are related and overlap each other, therefore they may be considered as a whole.

(a) Are taxes “debts” so as to fall under sections 4259-60, Revised Statutes 1899? Section 184 of the Administration Act relates to the classification of •demands against estates in process of administration. By its first subdivision, funeral expenses are put in the first class; by its second, expenses of the last sickness, wages of servants and demands for medicine and medical attendance during the last sickness of the deceased are put in the second class; by its third, “all debts, including taxes due the State or any county or incorporated city or town” are put in the third class. Now, it is conceded by plaintiff that taxes due by decedent may be put in judgment by suit in the circuit court (State ex rel. v. Tittman, 103 Mo. 553), or allowed against the estate (R. S. 1899, sec. 9246), but it is pointed out that by subdivision 3 of section 184 it is made the duty of au executor to pay such taxes without demand therefor being presented to the court for allowance, and this subdivision is relied on as a legislative definition of taxes as debts. The fourth subdivision relates to judgments. The fifth covers all demands without regard to quality which shall be legally exhibited against the estate within one year after the granting of the first letters on the estate, and the sixth and last covers all demands thus exhibited after the end of one and within two years of letters granted.

If we gave a controlling weight to the rule that one is known by the company he keeps, or that the thing itself is discoverable by what precedes and follows, known in the law as the doctrine of nosdtur a sodis, it would force the conclusion that in the legislative mind when enacting section 184, supra, taxes were deemed debts — the language being, “all debts, including taxes due,” etc.

But the dominant idea of that section is classification of demands against estates, not the definition of taxes or debts, and the third subdivision (unfortunately punctuated) is merely a direction that all debts due the State or any county or incorporated city or town, together with taxes due the one or the other, should be put in the third class of demands and paid accordingly. If we give a strict construction to both the language and punctuation used in the third subdivision, it would read: “All-debts are put in the third class as well as taxes due the State or a county, city or town.” But this would be unsound exposition, because debts generally are otherwise classified in other subdivisions.

Section 9246, under the title of Revenue, comes nearer to a legislative utterance defining taxes as debts than does section 184 of the Administration Act. That section says: “Said personal taxbill shall be presented and allowed against the estates of deceased or insolvent debtors, in the same manner and with like effect as other indebtedness of said debtors; ’ ’ bnt here again the legislative mind was directed to the method of collecting personal taxes — the remedy. It says, they shall be presented and allowed against estates. How? The legislative anwer is: as debts are allowed — it points to the Administration Act for a remedy. The use of the phrase, “As other indebtedness of said debtors,” vas intended to point the manner and. effect of the allowance.

This court has more than once had occasion to define the word “debt” as used in the Attachment Act and in the Constitution. The word has also been under exposition in connection with the subject of taxation. In Carondelet to use v. Picot, 38 Mo. l. c. 130, it was said: “A tax, in its essential characteristics, is not a debt, nor in the nature of a debt. A tax is an impost levied by authority of government upon its citizens or subjects, for the support of the State. It is not founded on contract or agreement. . It operates in invitum. A debt is a sum of money due by certain and express agreement. It originates in, and is founded upon, contract, express or implied. ’ ’

The foregoing definitions of “taxes” and “debts” were adopted from Peirce v. Boston, 3 Metc. 520, and Camden v. Allen, 2 Dutcher 398, and are carried forward with approval in State ex rel. v. Snyder, 139 Mo. l. c. 553, et seq.

On the other hand, courts in speaking of taxes have called them debts. It was so said in State ex rel. v. Tittmann, 119 Mo. l. c. 667. They are related to debts. [Phelps v. Brumback, 107 Mo. App. infra.] Such was the logie of Greeley v. Provident Savings Bank, 98 Mo. 458. In that case it was held that a collector of taxes could intervene in an action appointing a receiver for an insolvent hank, where such receiver had in his hands sufficient assets to pay legal taxes, and enforce such payment. In that case, too, the right to enforce payment was referred to the statute creating the State’s lien for debts due it from insolvent debtors. [Secs. 4259 and 4260, supra.]

In this condition of the statutes and case-learning, we need not decide whether a tax is technically a debt or not. It is sufficient for the case to say it has been determined that for the purpose of allowance and classification it may be treated as a debt, and it has been determined that taxes under the conditions present in Greeley v. Bank, supra, come within the purview of sections 4259 and 4260, and it is provided, section 9246, supra, they shall be allowed against the estate the same as other debts, that is, by the judgment of the proper probate court.

(b) Do sections 4259 and 4260 govern this case? Plaintiff says, yea; but we think, nay. Those sections were first enacted in the Laws of 1881, page 35. The caption of that Act may be looked to, and is: “Assignments : Priority of State’s Lien: An Act to secure to the State of Missouri a priority of lien in the case of insolvent debtors to the State.” By section 1 (now section 4259) it was provided that:

“Whenever any person indebted to the State of Missouri is insolvent, or whenever the estate of any deceased debtor in the hands of the executors or administrators is insufficient to pay all the debts due from the deceased, the debts due to the State of Missouri shall be first satisfied, and the priority hereby established shall extend as well to cases in which a debtor not having sufficient property to pay all his debts makes a voluntary assignment thereof, or in which the estate and effects of an absconding, concealed or absent debt- or are attached by process of law, as to cases in which an act of bankruptcy is committed: Provided, That nothing in this act contained shall be construed to interfere with the priority of the United States as secured by law, or tbe payment of tbe expenses of the last sickness, wages of servants, demands for medicine and medical attendance during the last sickness of the deceased, nor funeral expenses.”

Section 2 (now section 4260) provides that: “Every executor, administrator, assignee or other person who pays any debt due by the person or estate for whom or for which he acts before he satisfies and pays the debts due to the State of Missouri from such person or estate, shall becom'e answerable in his own person and estate for the debts so due to the State of Missouri, or for so much thereof as may remain due and unpaid. ’ ’

It is pointed out by defendant’s counsel that the foregoing sections are substantially transcripts of very old Federal statutes, to-wit, sections 3466 and 3467 of the Revised Statutes of the United States, 1878, and were, therefore, presumably adopted by our Legislature in 1881 with the construction put upon them by Federal courts. A comparison shows defendant’s counsel is right in his contention that the Federal statutes and ours are equivalent. It is apparent on its very face that section 4259, supra, relates to insolvent debtors. Under recognized canons of construction, it must be construed with section 4260 passed at the same time. They had but one common purpose, they struck at common mischief, and before either becomes applicable there should be a case of insolvency. The steady holding of Federal courts in construing the parent Federal statutes is in accordance with this view. [U. S. v. Fisher, 2 Cranch 358; U. S. v. Griswold, 8 Fed. 496; U. S. v. Hooe, 3 Cranch 72; U. S. v. Wood, 28 Fed. Cas. No. 16755, page 753; U. S. v. Couch, 25 Fed. Cas. No. 14874, page 674; Prince v. Bartlett, 8 Cranch 431; and in many other cases cited in counsel’s brief.]

The emergency clause tacked to the Act of 1881, throws a flood of light on the legislative meaning and sustains the gloss given above. That emergency clause is as follows:

“Section 4. Whereas, a doubt may be entertained by some as to the priority of the State in the case of insolvent debtors, and it is important that such question should be put at rest at once, an emergency exists within the meaning of the Constitution why this law should go into immediate operation, therefore this act shall take effect and be in force from and after its passage.”

There is no insolvency in the case at bar, and therefore those particular sections of the statutes do not apply.

III. The disposition made of the foregoing questions practically determines the case. It may be conceded that the two-year limitation provided by the Administration Act for the allowance of demands does not control the sovereign State in allowing demands for taxes. [State ex rel. v. Tittmann, 119 Mo. l. c. 666.] But it must also be conceded that where a right is created by statute and remedies are provided for enforcing that right those remedies are preclusive. [Phelps v. Brumback, 107 Mo. App. l. c. 25; State ex rel. v. Snyder, 139 Mo. l. c. 554, et seq., and cases cited.] In this case plaintiff had its remedies but it sinned away its day of grace; for even if it be admitted (by way of argument) that the Turner estate itself was liable for the taxes of the Briggs Trust Fund for 1897— which we by no means hold — yet the executor having made final settlement it seems cannot be held personally liable. [State ex rel. v. Kenrick, 159 Mo. l. c. 634.] Finally, in all the cases from Missouri courts relied upon by plaintiff’s counsel the very estate, subject to taxation, and actually taxed, was^ in the hands of the executor, administrator or. curator, as such, at the time the taxes were either assessed, levied or became due, and he had the wherewithal to pay them potentially in hand and a resulting duty to pay arose; for example, State ex rel. v. Tittmann, 103 Mo. 533; State ex rel. v. Burr, 143 Mo. 209; Kansas City v. Simpson, 90 Mo. App. 50; State ex rel. v. Donaldson, 28 Mo. App. 190; and such view accords with the good sense of the thing.

It would seem that taxes, payable by the executor without allowance, were those directly levied against the property of decedent. [Langston v. Canterbury, 173 Mo. l. c. 135; State ex rel. v. Tittmann, supra.] Why should an executor be put to the hazard of personally and correctly settling the doubtful questions of law involved in paying taxes on a trust estate once held by his testator, but not held or administered by the executor? When he presents his voucher for a voluntary payment, the burden is cast upon him to show a payment demanded by law, or he fails in his credit. The law is not so unfair as to cast that hal'd duty -on him in a case like this. It seems reasonable that the State should have set its right to recover at rest in one of the ways pointed out by the statute, if it wanted to hold the estate.

We think it can be safely asserted that no case can be found in the books in which a curator, an administrator or executor was personally held liable for taxes unless the property subject to the taxes and sufficient to pay them came into his hands in his official capacity for the purpose of administration or ouratorship. Such is not the case at bar.

IV. Plaintiff says the judgment is erroneous because it assesses the costs against it. It puts its finger on a statute providing that costs shall not be so assessed. [R. S. 1899, sec. 9246, supra.] But the judgment should not be reversed on that account, for two-very good reasons, viz.: (1) the trial court’s attention was not called to it by the motion for a new trial, and (2) no motion in arrest was filed. We will modify the judgment here and eliminate that feature. [R. S. 1899, sec. 866.]

As modified, the judgment is affirmed.

All concur.


author: CALLIANT, P. J.

text:
    HUBBARD et al., Appellants, v. SWOFFORD BROTHERS DRY GOODS COMPANY.
    Division One,
    February 26, 1908.
    1. DEED: By Agent: Purpose. A deed “by and between J. W. Summers, as agent for Chester Hubbard and Mary Hubbard, his wife, of the county of Jackson and State of Missouri, of the first •part,” reciting that “the said party of the first part, for his heirs, executors and administrators, covenant and agree with said party of the second part... .In testimony wheieof the said J. W. Summers, as agent for Chester Hubbard and Mary Hubbard, his wife, of the first part, has hereunto,” etc., and signed by “J. W. Summers, Atty. for Chester Hubbard,” not only purports to be the deed of Hubbard and wife, but one would have to yield his common sense interpretation of it to a very narrow technical one to reach the conclusion that it was the personal deed of Summers. Although Hubbard and wife lived in Iowa and Summers in Jackson county, yet as Hubbard had lately prior thereto executed a power of attorney to Summers conferring on him plenary power to sell any and all real estate in Jackson county belonging to Hubbard, and the land belonged to Hubbard, and the 'grantee accepted the deed as convéying the title to him, its evidént intention was to convey Hubbard’s title.
    2. -: Seal: No Scroll. Where no seal appears in the record copy, but the closing .clause of the deed declares it is under seal of the grantor and the acknowledgment is .that it was duly executed, the law presumes the deed was sealed.
    3. -: -: By Agent. Where the deed manifests the. maker’s intention to act as attorney for his principals in making the deed, and not for himself, the seal attached by him was their seal.
    4. -: Acknowledgment: Before “Mayor of Kansas.” By an acknowledgment in Jackson county before “the mayor of Kansas in said county” is meant an acknowledgment before the mayor of “the City of Kansas,” the official name of a city at that time (1856) in Jackson county. No one could be mistaken as to the municipality referred to.

      5. -: -: Officer's Seal. Where the deed recites that it was given under the official seal of the officer taking the acknowledgment, it, will be presumed that the omission of the “(L. S.)” in the certified copy was the mistake or oversight of the recorder making the copy.
    6. LIMITATIONS: Adverse Possession: Break in Continuity: 1 Remaindermen. The property was sold in 1856, and the grantee built a three-story brick house thereon, and inclosed the lot with a close fence, and lived in it until the fall of 1863, and then placed a tenant in it, and sold it in January, 1864, and that grantee testified it was vacant when he bought it. Held, that even if the original deed made in 1856 was insufficient to convey title, the continuity of the adverse possession was not broken by the fact that, for a short time, in 1863, less than three months., the property was not occupied, and as the original grantee did not die until 1861, the Statute of Limitations began to run against him in his lifetime, and his remaindermen cannot claim that it did not begin to run against them until the death of their mother, who died in 1899 — the original owner leaving a will by which he gave all his property to his wife for life, remander to his children, the plaintiffs.
    Appeal from Cass Circuit Court. — Eon, W. L. Jarrott, Judge.
    Affirmed.

      English & English for appellants.
    (1) The deed should not have been admitted in evidence at all. It was a copy of the record. The proof of the inability to produce the original was insufficient. The record constituted no evidence because the acknowledgment was not authenticated under the seal of the City of Kansas. Laws 1853, Approved Feb. 22, 1853, sec. 6, art. 3. (2) The deed was ineffective because it did not purport to be Hubbard’s deed at all and did not purport to be sealed with Hubbard’s seal. The deed would be wholly void at common law as Hubbard’s deed. Story on Agency, 147; 2 Kent, -631. Thie statute authorizing the use of a scroll as a seal (R. S. 1889, sec, 2388), which had been in force long before the deed in question was dated, recognized the fact that private parties usually used the scroll, and required the instrument, when the scroll was used, to recite that it was under seal. When this recital is made, it will he presumed that the original was sealed even though the copy shows no seal. In this case the record shows no seal. The instrument recites that Summers’ seal was affixed, but it contains no recital that Hubbard’s seal was affixed nor does the copy purport to show Hubbard’s seal. Jones, Eeal Prop, in Conv., sec. 1075; Fowler v. Shearer, 7 Mass. 14; Elwell v. Shaw, 16 Mass. 42; Clark v. Courtney, 5 Pet. 319.

      Elijah Robinson and Ellis, Cook & Ellis for respondent.
    (1) The failure of the mayor of Kansas City to insert in his certificate of acknowledgment the words .“the City of” before the word “Kansas,” was a mere clerical omission. This is made perfectly clear by the other recitals in the certificate. The certificate recites that it was given tinder the mayor’s hand and official seal, and the presumption is that the official seal'1 was affixed, although the (L. S.) does not appear on the certified copy of the deed. Jones'on Eeal Property, sec. 1075; 25 Am. and Eng. Ency. Law, 78 ; Hammond v. Cordon, 93 Mr. 223; McCoy v. Cassidy, 96 Mo. 429; Macey v. Stark, 116 Mo. 481; Mitchner v. Holmes, 117 Mo. 185. (2) This deed having been of record since 1856, the certified copy thereof was admissible in evidence, regardless of the question as to whether the certificate of acknowledgment was defective. E. S. 1899, sec. 3119; Wilson v. Albert, 89 Mo. 537; Brown v. Old-ham, 123 Mo. 621. (3) There can be no question but that it was the intention of Summers, in executing this deed, to act for Hubbard, and not for himself. He intended to convey Hubbard’s title, as he was authorized to do by Hubbard’s power of attorney to him, and not any title of his own. Hunter v. Miller, 6 B. Mon. 612; Webb v. Burke, 5 B. Mon. 54; Carter v. Doe, 21 Ala. 72; Magill v. Hinsdale, 6 C'onn. 464; Distilling Co. v. Brant, 69 111. 658; Shanks v. Lancaster, 5 G-ratt. 110; Martin v. Almond, 25 Mo. 313; Owen v. Switzer, 51 Mo. 322; Pease v. Iron Co., 491 Mo. 124; Turner v. Timber-lake, 53 Mo. 371; Whitehead v. Reddick, 12 Ired. (N. C.) 95; Butterfield v. Beall, 3 Ind. 203. (4) The deed recited that it was executed under seal, and it will be presumed that the seal was affixed, notwithstanding no (L. S'.) appeared on the certified copy of the deed. Jones on Real Property, sec. 1075 ; 25 Am. and Eng. Ency. Law, 28; Hammond v. Gordon, 93 Mo. 223; Me-Coy v. Cassidy, 96 Mo. 429; Macey v. Stark, 116 Mo. 481; Mitchner v. Holmes, 117 Mo. 185. (5) Plaintiff’s action is barred by the ten-year Statute of Limitations, (a) The statute began to run in Hubbard’s lifetime (when Trefren enclosed the lot and built the- dwelling and outhouses thereon) and was not suspended by any disability on the part of his heirs or devisees. Rogers v. Brown, 61 Mo. 187; Cunningham v. Snow, 82 Mo. 587; Pin v. St. Louis, 122 Mo. 665. (b) A temporary vacancy of the dwelling house did not constitute a break in the continuity of the adverse possession. Crispen v. Hannavan, 50’ Mo. 549; Fugate v. Pierce, 49 Mo. 441; Stettnische v. Lamb, 18 Neb. 617; Hughes v. Pickering, 35 Miss. 506; Hudgins v. Crow, 32 Ga. 367; Downing v. Mayes, 153 111. 330; De La Yega v. Butler, 47 Tex. 529; Patchin v. Stroud,-28 Yt. 394; Hunter v. Pinnell, 193 Mo. 142. (6) Even a verbal contract of sale of lands, the purchase money being paid and possession being taken by purchaser and representation of such sale made by the seller to a subsequent buyer, gives the latter good title enforceable in equity. Rice v. Bunce, 49 Mo. 231; Guffey v. O ’Reilly, 88 Mo. 418; Raley v. Williams, 73 Mo. 310. (7) Hubbard’s representations to H. H. King that he, Hubbard, had sold this lot to Wheeler, are presumed to have been relied upon by King as incident to King’s purchase of the property. 2 Pom. Eq., sec. 895, p. 382; Kerr, Fraud and Mistake, 75; 1 Benj., Sales (Corbin’s Ed.), p. 556 and note; Redgrave v. Hurd, L. R. 20 Ch. Div. 24; Fish-back v. Miller, 15 Nev. 443; McClellan v. Scott, 24 Wis. 87.

      English & English for appellants in reply.
    The law required the deed to be under the seal of the grantor. The deed introduced does not purport to be under Hubbard’s seal, nor does the certified copy of the record recite that it was under his seal. The only recital of the record is that it was under Summers’ seal. Since it did not purport to be under Hubbard’s seal, the deed could not be read in evidence. Walker v. Kirk, 8 Mo. 301; McCoy v. Cassidy, 96 Mo. 429; Macey v. Stark, 116 Mo. 481.
   CALLIANT, P. J.

Plaintiffs sue in ejectment for the possession of certain real estate in Kansas City. The trial resulted in a verdict for. the plaintiffs which the court on defendant’s motion set aside, and granted a new trial. From that order the plaintiffs have appealed.

Chester Hubbard, the father of the plaintiffs, was the common source of title. He lived in Kansas City from 1853 to 1857 when he moved to Iowa. While he lived in Kansas City he owned certain land in that city which he platted into city blocks and lots called Hubbard’s Addition. The lot in controversy in this suit was in that addition. He died in 1861 in Iowa, leaving a will by which he devised all his estate, real and personal (without specifying any particular property), to his wife for life, remainder to his children. The widow died in 1899. The plaintiffs in this suit are the children of the testator and claim this land as remaindermen under that will.

The defendant claims title as follows:

September 16,1856, Chester Hubbard' and his wife executed a power of attorney to John W. Summers who, the evidence shows, was a justice of the peace in Kansas City, conferring on him plenary power to sell any or all real estate belonging to them in Jackson county. That document was duly acknowledged and was recorded October 16, 1856.

December 2, 1856, Summers executed a deed conveying the lot in suit to George B. Wheeler for $225 in cash. The main controversy in this suit turns on the effect of that deed. It is as follows:

“This indenture, made and entered into this second day of December, in the year of our Lord one thousand eight hundred and fifty-six, by and between J. W. Summers, as agent for Chester Hubbard and Mary Hubbard, his wife, of the county of Jackson, and State of Missouri, of the first part, and George B. Wheeler of the county and State aforesaid, of the second part.
“Witnesseth: That the said party of the first part for and in consideration of the sum of two hundred and twenty-five dollars to me in hand paid, the receipt whereof is hereby acknowledged, have given, granted, bargained and sold, and by these presents do give, grant, bargain and sell, alien, convey and confirm unto the said party of the second part, and to his heirs and assigns forever, a certain tract or parcel of land, lying and being in the county of Jackson, and State aforesaid; namely, a certain lot, piece or parcel of ground known in said Hubbard’s Addition to the City of Kansas, as lot number twenty-seven (27), in block number six: (6), said lot being sixty feet on Mary street and one hundred and forty-two feet from said Mary street to an alley, and being sixty feet on said alley.
“To have and to hold the said tract, piece or parcel of land with all the- appurtenances thereto belonging or in any wise appertaining to the only proper use, benefit and behoof of him, the said party of the second part, and to his heirs and assigns forever; and the said party of the first part, for his heirs, executors and administrators, covenant and agree to and with said party of the second part, his heirs and assigns, the said tract, piece or parcel of land and bargained premises and every part and parcel thereof, unto him, ’ the said party of the second part, and his heirs and assigns, against all manner of claims they will warrant and forever defend the same by these presents.
“In testimony whereof the said J. W. Summers, as agent for Chester Hubbard and Mary Hubbard, his wife, of the first part, has hereunto set his hand and seal this day and year above written.
“ J. W. Summers,
“Atty. for Chester Hubbard.”

Plaintiffs urge several objections to this deed, the first of which is that it does not purport to be the deed of Hubbard and wife but the personal deed of Summers.

One would have to yield his common sense interpretation of this deed to a very narrow technical interpretation of it in order to reach the conclusion that it was intended otherwise than as the deed of Hubbard and wife by their attorney in fact. When it was offered in evidence one of the objections interposed was that it was the deed of Summers and not that of Hubbard and wife and it was said that the words ‘ ‘ agent and attorney for Chester Hubbard and Mary Hubbard, his wife,” were-“merely descriptive” of Summers. Words of description are sometimes used to identify a person whose mere name in the connection used might be mistaken to refer to some other person of the same name, as, for example, Charles Carroll of Carrollton, but can any such purpose be imagined in this instance? Besides, Summers was conveying land that it is admitted belonged to Hubbard. As agent of Hubbard he was selling- Hubbard’s land. How did Summers understand his act, how did Wheeler understand it, how would any man of common sense, learned or unlearned, understand it? Summers was endeavoring, as agent for Hubbard, to convey to Wheeler Hubbard’s land; that was the purpose they both had in view and the executing of the deed by the one and the accepting of it by the other shows that they both understood that it accomplished that purpose. We must construe the deed according to the evident intention and so construing it we hold that it is a deed from Plubbard and wife to Wheeler. [Martin v. Almond, 25 Mo. 313; Pease v. Iron Co., 49 Mo. 124; Owen v. Switzer, 51 Mo. 322; Turner v. Timberlake, 53 Mo. 371; McClure v. Herring, 70 Mo. 18.]

This deed was recorded December 24,1856. The evidence of it was a certified copy, the defendant having-first made proof that the original was not in its power. Plaintiffs now offer the further objection that the deed is not sealed with Hubbard’s seal. No seal appears in the copy, although in the closing clause of the deed it declares that it is under the seal of the grantor as he is therein described, and the acknowledgment is that it was duly executed. .Under those conditions the law presumes that the deed was sealed. [Hammond v. Gordon, 93 Mo. 223; McCoy v. Cassidy, 96 Mo. 429; Macey v. Stark, 116 Mo. 481; Mitchner v. Holmes, 117 Mo. 185.]

But appellant insists that it is not sufficient even if it appeared that Summers had attached his seal, because the^decd to be effectual should carry the impress of Hubbard’s seal. That brings us back to the question of whose deed this was. It was inartificially drawn but, as we have seen, Summers was not purporting to act in his individual capacity, it was only in the capacity of agent for his principals and all that he did was intended to be the act of his principals; under the power of attorney he had authority to attach their seals to the deed and when, not as himself, but as ag’ent for them, he attached a seal while proclaiming he was acting for them it was their seal.

This deed, in connection with, that power of attorney, might be viewed from another standpoint and it would be equally effective to carry the title to the land, that is, viewing Summers as the donee of a power to sell and execute a deed of conveyance, if he had made the deed referring to the power and indicating that as in execution of it the deed was made in his own name as grantor it would have been a valid execution of the power. But we are rather inclined to the opinion that Summers was intending to act simply as agent and that his hand that signed and sealed the deed was the hand not of Mr. Summers but the hand of Hubbard’s agent and therefore Hubbard’s hand.

It is further objected that the certified copy shows that the acknowledgment was before the mayor of “Kansas in the county aforesaid” whereas it is said there was no city named “Kansas” in that county. We know, however, that there was at that time in Jackson county a city whose official name was “The City of Kansas,” and no one not desiring to be mistaken could bé mistaken in the municipality referred to.

Lastly, it is objected that the certified copy does not indicate that the.seal of the City of Kansas was attached to the mayor’s certificate of acknowledgment. The acknowledgment concludes with: ‘ ‘ Given under my hand and official seal the date above written. M. J. Payne, Mayor. ’ ’

Since the deed recites that it bears the mayor’s official seal it will be presumed that the omission of the (L. S.) in the certified copy was the mistake or oversight of the recorder making the copy.

We hold that this instrument was valid as the deed of Chester Hubbard and passed his title to the grantee Wheeler therein named. '

Following this deed defendant produced in evidence a succession of deeds making a regular chain bringing the Wheeler title down to the defendant.

As what is above said disposes of the plaintiffs’ claim, it is perhaps unnecessary to follow the defendant’s evidence any farther, but as the cause is to be re-triéd we will consider the other questions.

The evidence showed that when. Wheeler bought the lot it was vacant; he sold to one Bailey in 1857, and Bailey sold to one Trefren in 1859. When Trefren bought it he built a three-story brick residence on it and enclosed it with a fence and lived there with his family until the fall of 1863 when he moved to St. Louis. When he went to St. Louis he rented the premises to one Sears, who occupied it as tenant of Trefren, just how long the evidence does not show. The title passed through mesne conveyances from Trefren to one King in January, 1864; thence by successive conveyances down to the defendant. Mention is here made of the conveyance to King because he in his testimony stated that the house was not occupied at the time he bought it, but that he put a man in it and it was not vacant again while he owned it. That testimony is relied on by plaintiffs to show that the adverse possession which began in 1859 was not continuous. Whilst the- time during which the house was not occupied is not definitely stated, yet sufficient is stated to show that it was not a long period. Trefren who built the house lived in it until the fall of 1863, when he left he rented it to Sears who occupied it as his tenant, and King bought it in January, 1864. So that at the most there was a space of only about three months between the time Trefren moved to St. Louis and the time King purchased, and within that time Sears occupied the house, just how long is not shown. And even during that period, as the evidence shows, there was a close fence around the premises, and doubtless the house was closed and locked, although that was not shown. Except for that brief period the testimony showed that the property had been in the open, continuous and adverse possession of the persons under whom the defendant claims from 1859 to the date of the trial.

As Hubbard did not die until 1861 this possession began in his lifetime, therefore the Statute of Limitations began to run then, and did not cease to run because of his death. If the' possession had not begun until after the death of Hubbard then the Statute of Limitations would not have begun.to run against the plaintiffs, who claim as remaindermen, until the falling in of the life estate in 1899, but having begun in his lifetime it ran on against his heirs and devisees. That the house was unoccupied for a short while did not break the continuity of the adverse possession. See the cases cited on this point in respondent’s brief.

The defendant’s evidence made out a clear title by adverse possession.

There is one other point in defendant’s case which we will notice, though perhaps it is unnecessary.

Mr. King testified that he bought from Hubbard the other lots in Hubbard’s Addition and while he was negotiating for them Hubbard told him that he had sold this lot to Wheeler. Defendant contends that, because King afterwards bought the lot from one deriving title from Wheeler, Hubbard’s devisees are estopped from denying the Wheeler title.

Assuming that what Hubbard said to King on that occasion would have the effect to estop the plaintiffs from disputing the title of Wheeler, there may be some question as to whether King was a competent witness to prove the fact. Suppose King was still holding the Wheeler title he acquired and was in possession of the property under it, would lie in his own behalf against the heirs or devisees of Hubbard be a competent witness under section 4652, Revised Statutes 1899', to prove a conversation between himself and the man who has since died that would in effect defeat a title that it is claimed the man now dead owned at the date of his death, or prevent its passing to his heirs or devisees, and if he could not in his own behalf could he “in favor of any party to the action claiming’ under him?”

We will not enter upon an investigation of that question because it was not raised in the trial court and has not been referred to in the briefs on either side; therefore, it is not necessary to decide it. We mention it, however, because we consider it a question not free from difficulty.

The trial court was right in setting aside the verdict for the plaintiff and granting a new trial.

The judgment is affirmed.

All concur.


author: WOODSON, J.

text:
    JACKSON v. GULF ELEVATOR COMPANY, Appellant.
    Division One,
    February 26, 1908.
    1. NEGLIGENCE: Causal. Where no causal connection Is shown between the negligence charged and plaintiff’s injury, he cannot recover, and the court should sustain a demurrer to his. evidence.
    2. -: -: Corn Grinder: Insufficient Light. Plaintiff was employed in the operation of a machine for grinding corn. In front of the machine, five feet high, midway thereof, was a door about six by fourteen inches, and near the bottom of the hopper was a pair of rollers, and below them about two feet, and twelve or fourteen inches below the lower edge of the door, was a second pair of rollers, and in determining whether or not the corn was being properly ground the operator’s duties requirted him to insert his hand at the door and catch the grist, and examine it with his fingers, and in doing that plaintiff inserted his arm to the elbow and in someway his hand was caught hy the lower rollers and crashed. The negligence charged was that there was not sufficient light in the room, and that plaintiff had complained of that and -defendant had two weeks previously promised to supply more windows, and these facts were proven. Held, that the evidence did not show that the poor light in the room had anything to do with plaintiff’s injury, and he cannot recover.
    Appeal from Jackson Circuit Court. — Now. J. N. Slo* ver, Judge.
    Reversed.

      Earhless, Crysler £ Eisted for appellant.
    . (1) If the appliances are safe for the purpose designed but the party is injured by improper handling, the master is not liable. Holmes v. Brandenbaugh, 172 Mo. 53. (2) Plaintiff was fully aware of all the conditions, and the evidence presents no excuse for his putting his hands between the rollers, and he was guilty of contributory negligence. Holmes v. Brandenbaugh, 172 Mo. 53. (3) But plaintiff recognizes this, and seeks to avoid it on the claim that there was not enough light in the room, but the condition was a part of the manner of conducting the business and plaintiff was fully aware of it. (4) Plaintiff also recognizes that this was one of the conditions of risk which he assumes. He seeks to excuse himself on the ground that the master promised to put in more windows in the room. But this is no excuse for two reasons: 1. He knew the master had not done so and continued to work for three weeks, knowing nothing was attempted to be done. Stalzar v. Dold, 84 Mo. App. 565. 2. The undisputed evidence is that the putting in of the windows he suggests would have in no way lighted the inside of the machinery.

      Boyle, Guthrie, Howell & Smith for respondent.
    There is not, in fact, any such doctrine in existence in this State as the defense of assumption of risk. The only grounds upon which a master may defend a claim of an employee alleged to have been injured through the negligence of the master is to either disprove the evidence of negligence, or show that the servant was guilty of contributory negligence, or that he continued to work with knowledge of a danger so glaring and obvious that no prudent man would have taken his chances therewith; or that, believing he could escape the danger by the exercise of reasonable care, he failed to exercise such care — was guilty of contributory negligence; and all of these questions are matters for the sound judgment of a jury. Curtis v. McNair, 173 Mo. 280. If there was not sufficient light in the machine, it was because there was not sufficient light in the building. If this insufficiency was because ‘ ‘ of the failure of defendant to properly light,” then the defendant was guilty of negligence. And if plaintiff “was injured by reason of the failure of defendant to properly light,” and was at the time “in the exercise of ordinary care,” the case was complete — an injury as the result of defendant’s negligence without contributory negligence on the part of plaintiff.
   WOODSON, J.

The plaintiff instituted this suit in the circuit court of Jackson county against the defendant to recover the sum of $25,000' damages sustained by him in consequence of personal injuries received through the alleged negligence of the latter.

The petition, in substance, alleged that on August 19, 1904, the plaintiff was in the employ of the defendant and was operating what was known as a corn grinder, in the second story of a building belonging to the. defendant, and that the building was without windows, except certain small windows at the top, and that the light admitted was dim and insufficient to properly light the building so that plaintiff could see to properly perform his duties. That he made complaint of the insufficiency of the light and objected to working with it, and requested defendant to furnish more light and construct more windows. That it promised to do so and failed to do so. That on account of the insufficiency of light, the plaintiff was injured while operating the machine, to-wit, the corn grinding machine. That he got his left hand caught in the moving machinery inside the grinding mill and so mashed and bruised that it had to be amputated at the wrist.

The answer was a general denial, a plea of negligence on the part of the plaintiff, and the assumption of risk.

The facts of this case are but few and are undisputed, as disclosed by this record. •

The defendant was engaged in the elevator and grain business at Kansas City. It maintained and operated a corn grinder in one of its buildings, which was poorly lighted. The plaintiff was .an employee of the defendant, whose duty it was to operate that grinder. The machine was designed to grind corn by a system of cylinder rollers, which were propelled by steam power, and revolved inside of the machine. In dimensions it was about four and one-half feet square, and. stood on tbe floor, and was about five feet in height, on top of which stood a hopper, into which the com was placed and fed into the machine. It was made of steel, except the sides and top, which were made of wood. The corn was to be ground into chop for coarse feed. The corn ran down through the hopper on to the rollers, and was by them mashed and ground. In front of the machine, and at a point midway thereof and at about the height of a man’s waist, there was a small door, about six by fourteen inches square, opening into the machine, which could be opened or closed by the operator at will. There were three sets of rollers inside of the machine-one pair was near the bottom of the hopper; below that set some two feet was another pair, which are from twelve to fourteen inches below the lower edge of the door and some eight or ten inches removed back from the door; and still further removed is the third pair, which have nothing whatever to do with this case. The space between the first two pair is something near two feet. The grain passes from the hopper through the first and then drops forward toward the door and downward to the second pair of rollers.. This door is for the purpose of permitting the operator to insert his hand in the machine so as to catch the grist from the first rollers in order to determine whether or not it is being ground properly, which is determined by the touch of the thumb and fingers. If the hand is inserted on a straight line between the upper and lower edges of the* door, It will not come closer than twelve or fourteen inches to either the upper or lower pair of rollers, and, in order to catch the grain as it falls from the upper to the lower rollers, it is only necessary to insert the hand in on a straight line not further than up to the wrist. There are no lights on the interior of the machine; it is perfectly dark on the interior, except when the door is opened, which admits more or less light. It was not necessary for the proper operation of the machine that it should be light inside, nor was such light necessary to make it reasonably safe for the employees working about it. The light of the room' came through two small windows, near the top- of the room in which the machine was located, which gave sufficient light for plaintiff to see the machine in all of its outlines, and to transact all of his duties in and about the room, yet it was what was called a poor light. Plaintiff complained of the light, and the superintendent promised some two weeks prior to the injury to give him more light, but never did so-.

Under the facts as above stated, on August 19, 1904, plaintiff, while in the performance of his duties, opened the door of said machine and inserted his hand into the machine and extended it, as he said, in some unaccountable way, forward and downward between the rollers below, which were from twelve to fourteen inches removed from the door, which caught and mangled his hand so badly that amputation was necessary.

Defendant ashed the court to give an instruction in the nature of a demurrer to the evidence, which the court refused; and to that action of the court the defendant duly excepted. The court then submitted the cause to the jury under the evidence and instructions, and the jury found for the plaintiff and assessed his damages at the sum of $9,000. After taking proper steps therefor, the defendant duly appealed the cause to this court.

I. There is really but one question presented by this record, and that is, was the action of the court in refusing appellant’s demurrer to the evidence error?

There is no pretense that the machine was defective or so placed as to make it dangerous for the plaintiff to work with or about it. In fact, no such charge is made in the petition, but the sole complaint is that the room in which the machine was located was poorly lighted.

While it is true the evidence does tend to show that the light in the room was poor, and that plaintiff complained of it to appellant’s superintendent, and that the latter promised to remedy that, and that he never did so, yet the respondent introduced no evidence whatever which tends in the remotest degree to show how that fact had anything to do with or contributed to his injury. He does not pretend to say he did not see the machine, the door and the opening caused by opening the door; nor that he did not see and know where he was placing his hand.

He was an educated man and an experienced mill-man, and knew all about this machine and its operation, and had operated it some three weeks before he sustained the injuries complained of. He, himself, says he does not know how he happened to place his hand between the roller, nor did he tell the jury or the court what caused him to do so. He did not even tell the jury that the poor light of the room in which he was working had anything to do with his injury; and we are unable to see any connection between the two.

The only reasonable answer that suggests itself to our minds as to how he received his injury is this — -he either thoughtlessly or negligently thrust his hand and arm up to his elbow into the opening and let his hand drop down to the rollers, which caught his hand and ground it off.

The conclusion is irresistible to a fair and unbiased mind after reading this record that the appliances with which the respondent was working were reasonably safe, and that his injury was caused by his improper handling the machine. [Holmes v. Brandenbaugh, 172 Mo. 53.]

There being no evidence in this record which tends even remotely t5 prove the respondent’s injury was caused by the negligence of the appellant, we are, therefore, constrained to hold that the court erred in not giving its demurrer to the evidence.

For that reason the judgment is reversed.

All concur.