author: VAULT ANT, P. J.

text:
    SALLY L. WALES, Appellant, v. IDA C. HOLDEN et al.
    Division One,
    February 26, 1908.
    1. ADOPTION OF CHILD: Proof. Proof of a contract in a suit in equity to enforce a specific performance of what is alleged to have been an oral contract to adopt plaintiff as a child of decedent and to make her an equal heir with his own child, must, in the face of the Statute of Frauds, be overwhelming in its probative force, leaving no room for a reasonable doubt as to the existence of the contract. And the proof in this case does not measure up to that standard.
    2. -: Character of Parties. In a suit to establish a contract of adoption of a child, the characters of the persons whose actions and transactions are under review are-important facts to be considered, in passing upon the credibility and accuracy of the evidence.
    3. -: Habits of Adopting Parent: Competency. Where plaintiff’s evidence rests only on the alleged contract of adoption, the character, habits and business methods of the deceased adopting parent are not competent evidence; but where plaintiff, in order to avoid the bar of the Statute of Frauds, undertakes to make a showing of specific performance, such evidence is competent.
    4. -: Unreliable Evidence. Evidence that rests alone in the memory of witnesses attempting to recall conversations which occurred thirty years ago, when they were fourteen or fifteen years old, is not reliable, especially where resort must be made to those conversations for ascertaining what the contract . .was. And when their testimony is irreconcilable on every cir- . cumstance connected with the child’s going to decedent’s home, except the one point that all say he agreed to adopt her, it will not be held sufficient to establish the existence of a contract on his part to adopt her and make her his heir.
    5. -: Part Performance: Consistency. When a court of equity is asked to enforce an oral contract, void under the Statute of Frauds, on the ground of part performance, it requires that the part performance relied on should be of a character not only consistent with the reasonable presumption that what was done was done on the faith of such contract, but also that it would be unreasonable to presume that it was done on any other theory; and it cannot be held that the fact that an orphan girl eight years old, in indigent circumstances, was taken into a family of comparatively wealthy people and reared and educated on an equality with their only daughter, was consistent only with the theory that she was an adopted daughter and that at the death of the father his only child was to make an equal division with her of an estate which was the product of his whole life’s work.
    Appeal from Nodaway Circuit Court. — Hon. Wm. G. Ellison, Judge.
    Affirmed.

      Hudson & DuBois, Ab. H. B,omans and Ernest Engle for appellant.
    (1) Oral contracts of the kind stated in the petition, when proven according to the standard of proof required, and shown to he performed, will be decreed to be specifically enforced. Lynn v. Hockaday, 162 Mo. Ill; Berg v. Moreau, 199 Mo. 416; Sharkey v. McDermott, 91 Mo. 647; Eussell v. Sharp, 192 Mo. 270; Kirk v. Middlebrook, 201 Mo-. 245; Eosenwald v. Middle-brook, 188 Mo. 58; Grantham v. Gossett, 18£ Mo. 651; Alexander v. Alexander, 150 Mo. 579; Kinney v. Murray, 170 Mo. 674; McElvain v. McElvain, 171 Mo. 244; Nowack v. Berger, 135 Mo. 24; Teats v. Flanders, 118 Mo. 660; Healy v. S-imp-son, 113 Mo. 340; Davis v. Hendricks, 99 Mo. 478; Hale v. Haris, 145 Mo. 214; Wright v. Tinsley, 30 Mo. 389; Clark v. Co-rdry, 69' Mo. App. .6; Stone v. Pennock, 31 Mo. Ap-p. 544; Lee v. Howe, 27 Mo. 521; Farrow v. Patton, 20 Mo. 81. (2) Plaintiff’s objection to the competency of Ida C. Holden, as a witness, should have been sustained, for the reason that she Was a party to- -the ‘suit, interested in the result, and is making a defense, and claiming her interest in the estate of George W. Lewis, deceased, under him, who, if living, would have been incompetent as a witness on the ground that Asa Kelim, the other party to the alleged contract of adoption, was dead. Sec. 4652, E. S. 1899; Messimer v. McCray, 113 Mo. 387; Warfield v. Hume, 91 Mo. App. 546 -, Meier v. Thieman, 90 Mo. 433; Tucker v. Gentry, 93 Mo. App. 662. (3) Plaintiff is not presenting and making a claim against the estate of George W. Lewis, deceased, but is asking for a distributive share of the estate, and was a competent witness in her own behalf. And, in any event, she was a competent witness to deny and give her version of statements and conversations, testified to by the defendant, Ida C. Holden, claimed by her to have been had with, or in the presence of, plaintiff. Spradling v. Conway, 51 Mo. 54; Hoit v. Davis, 30 Mo. App. 314; Brandon v. Dawson, 51 Mo. App. 244; Lynn v. Hockaday, 162 Mo. 124; 30 Am. and Eng. Ency. Law (2 Ed.), 1031; Wade v. Hardy, 75 Mo. 401; Vandergrif v. Swinney, 158 Mo. 527.

      J. W. Peery for respondents.
    (1) Mrs. Holden was a competent witness in her own behalf. She was not a party to the contract sued upon. She did not derive her right of defense from her father in the statutory sense. She was defending her title to this property in her own right. Reed v. Painter, 145 Mo. 341. She did not testify to any conversa,tion or transaction with Asa Kelim nor to any act or fact with which he was connected, or of which he, if living, would have had any knowledge. Weiermuller v. Scullin, 203 Mo. 472. (2) Plaintiff was not a competent witness to testify to the facts recited in her offer because the administrator of George W. Lewis was a party of record to the action, and under the law was a necessary party. She was therefore excluded by the terms of the statute. Weiermuller v. Scullin, 203 Mo. 474. (3) Under the allegations of the petition, it was made an issue in the case whether Judge Lewis had always recognized the contract pleaded, and always intended to carry it out; and whether during all the time intervening between the making of it, and his death, he and the plaintiff performed it and recognized it. Upon the issue so tendered the acts and declarations of the deceased were competent. The res gestae of this transaction was not confined to the very moment of the making of the alleged contract, hut it embraced all of the time of its alleged performance. Maxwell v. Ratliff’s Admr., 26 Ind. 157; Overseers v. Overseers, 2 Klup (Pa.) 441; Jewell’s Lessee v. Jewell, 42 U. S. 219; Northup v. Hale, 76 Me. 306; Swink v. French, 11 Lea 78; Washington v. Bank, 171 N. Y. 163; Baker v. Kelly, 41 Miss. 696. In the construction of an ambiguous contract, the court will look not merely to the words employed, hut to the subject-matter, the surrounding circumstances and the contemporaneous interpretation thereof by the parties themselves. Williams v. Railroad, 153 Mo-. 487; Carter v. Foster, 145 Mo. 383; Witmore v. Crouch, 150 Mo. 671; St. Louis v. Gas Co., 155 Mo. 1. All of the evidence admitted and excluded is preserved and set out in extenso in this record. In such case the rule in appeals in equity, established by a long line of decisions, is that this court will reject evidence improperly admitted or consider evidence improperly excluded, and try the case de novo. State ex rél. v. Jarrott, 183 Mo. 218; Carpenter v. Roth, 192 Mo. 658; Bouton v. Phippin, 192 Mo. 473-; Ross v. Ross, 83 Mo. App-. 330; McCormick v. Parsons, 195 Mo. 91; Goodrick v. Harrison, 130 Mo. 269'. (4) The evidence for plaintiff was wholly insufficient to justify a decree in her favor in this character of action. There was no sufficient and satisfactory proof of the contract alleged. There was no- clear or cogent proof of the performance of that particular contract. Fanning v. Doan, 139 Mo. 392; Steele v. Steele, 161 Mo. 566; Kinney v. Murray, 170 Mo. 674; McElvain v. Mc-Elvain, 171 Mo. 244; McKee v. Higb-ee, 180 Mo. 263; Asbury v. Hicklin, 181 Mo. 6-58; Grantham v. Gossett, 182 Mo. 651; Rosenwald v. Middlebrook, 188 Mo. 58; Brevator v. Creech, 186 Mo. 558; Russell v. Sharp, 192 Mo. 270; Berg v. Moreau, 199 Mo. 416; Kirk v. Middlebrook, 201 Mo. 245; Albring v. Ward, 137 Mich. 352.
   VAULT ANT, P. J.

This is a suit in equity to enforce specific performance of what is alleged to have been an oral contract to adopt the plaintiff, then a child eight years old. The contract is said to. have been made in April, 1874, when the plaintiff was an orphan living in the home of her paternal uncle, Asa Kelim, and the parties to the contract were Asa Kelim acting in loco parentis for the plaintiff and George W. Lewis in his own behalf. The latter was known as Judge Lewis, formerly a judge of the probate court and afterwards and for many years one of the prominent lawyers in that part of the State. .Judge Lewis died November 22, 1902; Asa Kelim died several years before, therefore when this suit was begun both the. contracting parties were dead.

The petition states that on her death-bed the plaintiff’s mother placed her in the care of this uncle “requesting him to procure a home for her with some good family in such manner and place as his best judgment might dictate where she might be educated and well raised.” That on the death of plaintiff’s mother her uncle took her to his home, applied for and obtained letters of guardianship and she was living with her uncle when, in 1874, Judge Lewis and his wife came to Grant City, near which her uncle lived, and asked him to allow them to take plaintiff and adopt her as their own child, to which her uncle consented and thereupon it was agreed “by and between the said Asa Kelim as guardian of the person of the plaintiff and by virtue of the power and authority delegated to him by plaintiff’s mother, and the said George.W. Lewis, that he, the said George W. Lewis, would take the plaintiff herein, adopt her and make her his adopted child, educate, care for and give her all the rights of a natural child, and at his (the said George W. Lewis’s) death this plaintiff should be entitled to and receive an equal share with his other child or children, of all of his (the said George W. Lewis’s) estate and property, real, personal and mixed, wherever situated.”

Then the petition goes on to state that in conformity to that agreement plaintiff was taken into the Lewis home and remained there nine years, until 1883, when she was married and went to a home of her own with her husband; that during all that time she was treated as a daughter in the family and conducted herself as was becoming to one in that relation. That while she lived in his family Judge Lewis frequently told her of his “agreement of adoption;” that by its terms she “had been legally and lawfully adopted and was to have and receive an equal share as such adopted child with his other child or children in all the property that he might have at his death, wherever situated, and whether real, personal or mixed.” That for several years before her marriage Judge Lewis and his wife were old and feeble and she alone ministered as a daughter to them. The petition states and reiterates that Judge Lewis always recognized the contract of adoption “and always intended to carry out said contract and agreement of adoption and always intended that plaintiff should, at his death, share equally- with his other child or children in all his estate.” And yet the alleged adopting father died in 1902, leaving an estate worth about $200,000 and only one heir, his daughter, Ida C. Holden; who and her husband, who is also administrator of the estate, are the defendants in this suit. The trial resulted in a judgment for defendants and from that- judgment the plaintiff prosecutes this appeal.

There was evidence tending to support the plaintiff’s claim, the character of which evidence we will consider later. Both parties to the contract being dead and there being no deed or other evidence in writing, necessarily the evidence for the defendants was in. a great degree negative in form. The circumstances of 'this case forcibly illustrate the wisdom of the rule of evidence so firmly established and so often declared by this .court, namely, that the proof to sustain a claim of this kind, in the face of the Statute of Frauds, must be overwhelming in its probative force, leaving no room for a reasonable doubt. We do not consider it necessary to discuss that rule at this time; we can add nothing in the way of argument to what we have already in many cases said. [Steele v. Steele, 161 Mo. 566; Kinney v. Murray, 170 Mo. 674; McElvain v. McElvain, 171 Mo. 244; McKee v. Higbee, 180 Mo. 263; Asbury v. Hicklin, 181 Mo. 658; Grantham v. Gossett, 182 Mo. 651; Rosenwald v. Middlebrook, 188 Mo. 58; Berg v. Moreau, 199 Mo. 416.]

The cases relied on by appellant do' not in the least impair the force of those decisions. Sharkey v. McDermott, 91 Mo. 647, came up on a judgment sustaining a demurrer to the petition in which the oral contract and the full performance on the part of the child were clearly stated. The trial court had sustained the demurrer and the Court of Appeals affirmed the judgment, but this court held that the petition stated a cause for relief in equity and remanded the cause for trial. There was no question of the sufficiency of the evidence in that case.

In Lynn v. Hockaday, 162 Mo. 111, the evidence was clear and convincing, and besides,' the undisputed facts in that case are in striking contrast to those in this case. In that case the child was only three or four years old; her name was changed to that of her adopting parents; at home, at school, in society, wherever she went she was known as Lillie Lynn, as the daughter of Mr. and Mrs. Lynn, and as their only daughter; she did not herself know until she was seventeen or eighteen years old that Mr. and Mrs. Lynn were not her own father and mother; she was married in the home of her adopting parents in their presence and under the name of Lillie Lynn. Besides, the adopting father in that case, though he was an intelligent and well-to-do-farmer and perhaps knew that there should be some written document to evidence the adoption, yet if he knew it he doubtless did not appreciate its importance as he would have done if he had been, as in this case, a learned and exceedingly careful lawyer.

Before taking up the evidence for the plaintiff tending to prove the oral contract, let us see what the undisputed facts were to which that evidence was aimed to apply.

The plaintiff’s father died in 1866, she was born soon after. Her mother with three children, two boys (the eldest born in 1860) and this girl, came, to Missouri in 1867, to "Worth county, where we infer she had formerly lived and where Asa Kelim, a brother of her former husband, lived. She married again after she came to Missouri and had two children by her second husband. When she was in her last illness she was in quite destitute circumstances and she was greatly distressed at the thought of leaving her children, particularly the three girls, with no one to care for them. Asa Kelim visited her in her distress and being requested by her to take the children and care for them until he could get good homes for the three girls he promised to do so and on her death he took them to his home. He had a farm near the town, Grant City, consisting of 160 acres, on which he had a log house containing two or three rooms. He had at that time himself five children, but he was evidently a man whose heart was bigger than his fortune; he took these five children of the plaintiff’s mother, two of whom were not of his blood, and brought them under his roof to care for'them. We infer that the father of the two youngest girls was living, but however that may be, good homes were soon obtained for those two.

Judge Lewis and his wife knew the plaintiff’s mother and they both liked her; they also knew the plaintiff, then a little girl, and they were pleased with her. Just when they beard that it was the desire of Asa Kelim to find a good home for this child the evidence is not definite, but it seems they had heard of it, and in April, 1874, came to Grant City and after a conference with Asa Kelim took the child and carried her to their home, where she lived until she was married in 1883. During the years she lived in this family she was treated with kindness, she was clothed, educated and eared for as if she had been a daughter, and on her part she bore herself as a dutiful child. Her name was never changed, until her marriage; she was always known as Sally Kelim and under that name she was married. She was married at the home of Judge Lewis, but neither he nor Mrs. Lewis was present at the ceremony, it having occurred at seven o’clock in the morning before they had arisen. There was no deed of adoption ever executed. After their marriage the plaintiff and her husband took a short bridal trip and returned to Albany, where they lived about a year, then moved to another State and have not since lived in Missouri. On their return from their bridal trip, Judge Lewis gave the plaintiff $100. During the year they lived in Albany, Judge Lewis was on friendly terms with the plaintiff, he visited her several times. After she moved to another State he never visited her, although at intervals letters passed between them; occasionally some presents were sent from the Lewis family to the plaintiff’s children. After the plaintiff moved to another State she came back on visits with her children to Albany two or three times, and stayed at Jndge Lewis’s home; the last visit was in 1896' or 1897. There was no evidence that plaintiff was ever heard to say in the presence of Jndge Lewis or any member of his family that she was an adopted daughter or an heiress of his estate. Judge Lewis died in November, 1902; the first claim the plaintiff ever made for any part of his estate was August 10, 1903, and it was made through her attorney.

In a case of this kind, when the evidence is shadowy, the characters of the persons whose actions and transactions are under review are important facts to be considered. When the credibility or accuracy of the evidence is fairly in question what might be believed of one person is often discarded as incredible of another whose character we know. Knowledge of character good or bad is an aid in such case. The character of Judge Lewis stands out very clearly in the evidence in this case. He lived in Albany, Gentry county, from 1846 to the time of his death, 1902; for twelve years he had been probate judge of that county; after that he practiced law and was one of the prominent lawyers in that part of the State. He was well known, every one seems to have known him. Those who knew him best considered him unusually methodical in the conduct of his business. Judge Goodman, at one time his law partner, and later judge of the circuit and now a prominent lawyer in that county, testified: “He was very careful, very accurate, very methodical and a man much set in his own way. ’ ’ All the witnesses who testified concerning his character and business methods agreed that he was methodical to an unusual degree, strict in all his business transactions, exacting all that was due him and with the same exactness giving to others all that was due them, and they all agree that he was honest and just. The evidence also shows that Judge Lewis was not a companionable man; the plaintiff’s counsel think that Dr. Campbell, a witness for defendants, portrays truly the character of Judge Lewis when he sáys: ‘ ‘ Judge Lewis was a man who herded by himself.” The testimony of Judge Goodman gives the same impression. At the date of the alleged contract Judge Lewis’s family consisted of himself, his wife and one child, a daughter of seventeen years; the only evidence on the subject in the case shows that only the most affectionate paternal and filial regard existed between them.

All this evidence as to the character, habits and business methods of Judge Lewis wentinoverthe objection of plaintiff and it is now insisted that it was error to have admitted it. If fhe plaintiff’s case rested only on the testimony as to the alleged agreement or contract made between Asa Kelim and Judge Lewis on that day in April, 1874, when Judge Lewis and his wife received the child in Grant City and carried her home with them, the plaintiff’s objection to this evidence would have more reason to’ rest on, but even then when we come to consider, as we will presently consider, the peculiar character of that evidence, the business habits and character of the man to whose conduct that evidence relates are just subjects for consideration. If the plkiritiff had stated in her petition only that Judge Lewis had, on a certain day in April, 1874, entered into an oral contract with her uncle, acting in her behalf, to adopt her, but that in disregard of the contract he had failed to execute a deed of adoption, hence her prayer for specific performance, her petition would have been demurrable, it would have stated no cause of action at law or cause entitling her to equitable relief, the Statute of Frauds would have been a bar. And if after stating her cause as she has done in her petition, she had introduced evidence only as to what was said and done on that day in April a demurrer to her evidence would have been fatal to her cause; in order to get over the bar of the Statute of Frauds she had to make a showing of performance on her part. In making that showing she necessarily brought out the home life of the Lewis family and, into conspicuous view, the life and character of the man. There was no error in receiving that evidence.

We turn now to the evidence of the plaintiff tending to prove the alleged oral agreement to adopt the plaintiff.

A witness who kept a hotel at Grant City testified that in the spring of 1874 Judge Lewis and his wife came to the hotel and told him that they wanted Sally Kelim, he told them where she was, down at Asa’s; “they said they wanted to get her, wanted to adopt her; and I told somebody, I don’t know who it was, that Judge Lewis wanted Sally Kelim and where she was, and somebody went after her, and they came back to the hotel and were there pretty near all- day, if I recollect right, and they were handling some papers in the sitting room, I didn’t go in there but I saw them in there-as I passed in and out.”

“Q. Well what did you hear Judge Lewis say, anything more than you have said? A. Well, Judge Lewis told me he wanted to adopt her, that is all. ”

It turned out in the evidence of the next witness, Lee Kelim, a brother of the plaintiff, that it was he to whom the hotel-keeper gave the message to Asa Kelim to bring the little girl to the hotel; this witness testified that he just happened to be passing-the hotel when the keeper came out “and asked me where Sally was and I said she was down at.Uncle Asa’s, and he said, ‘ Judge Lewis is here and wants to get her and adopt her. ’ He says,1 Come in and see him. ’ He taken me into the barroom, and the Judge told me he had come up to- get Sally and to adopt her and if Uncle Asa would let him have her to bring her up in the afternoon so him and his wife could see her.” The witness carried the message and in the afternoon the uncle, Asa Kelim, the witness, and a younger brother who has since died, and Sally, came to the hotel and the conference was held. Sally ■did not go into the room at first; the landlord’s daughter met her and carried her off to another room to arrange her hair and toilet. When the uncle and the two boys came into the room where Judge and Mrs. Lewis were the Judge asked where Sally was; he was told that she would be in in a few minutes, then he said: “We have come up to get Sally and we will take her into our family. We will raise and educate her and have her as one of our family.” “But he said he would not take her unless he could adopt her. I put in a protest then. In fact, I asked for him to take her on six months ’ trial, and Mr. and Mrs. Lewis both spoke right up and said they would not take her that way at all; that they did not want to keep' her six months and get attached to her and then have to give her up. Uncle Asa. studied a little bit then, and said, ‘Judge, I will let you have her if you will take her and adopt-her and educate her.’ And Judge Lewis said, ‘I will do that.’ ” Then Bob (the younger brother) began to cry and said he did not want her name changed and Judge Lewis said that would make no difference at all. Then Asa Kelim produced his letters of guardianship and they were examined by Judge Lewis. After the agreement was made they parted with the understanding that Judge Lewis and his wife would call at Kelim’s farm the next morning to get Sally and take her to their home. Accordingly, Judge Lewis and his wife called and after conventional morning greetings Judge Lewis said to Mr. Kelim that he had come for Sally. “Uncle Asa says, ‘Now, Judge, you will do with her just as you have agreed to do, will you?’ Judge Lewis says, ‘Yes. Are you ready to sign the adoption papers?’ Uncle Asa says, ‘Yes, I am ready to sign them up to you, but I would not let anybody else have her.’ He says: ‘It grieves me awfully to sign away all my right to her, but I will do it for you. ’ Then Sally was brought out and they all told her good bye and she was put in the buggy; then Judge Lewis said to Mr. Kelim, ‘You will be up town this afternoon will you?’ To which he answered, ‘Yes,’ and they drove away.” On cross-examination his attention was called' to what he said in reference to the signing of the adoption papers by Asa Kelim.

“Q. You say, the next morning, or the next day, when they came to the house, Judge Lewis asked Asa Kelim if he was ready to sign up those adoption papers? A. Yes, sir. . . . Q. Your idea was that if formal papers were executed Asa Kelim would have to sign the papers? A. Certainly he would, yes, sir.” This witness was a few months less than 14 years old at the date of the events he was attempting to recall, and between that date and the date on which he was giving his testimony thirty years had passed.

Another witness for plaintiff who had married a daughter of Asa Kelim testified that he was at the home of Kelim when the Lewises called and took the little girl away. This witness undertook to repeat the conversation between Judge Lewis and Mr. Kelim on that occasion. He testified that when Judge Lewis said that he had come for the child, Mr. Kelim said, “When it comes to signing my own flesh and blood away, I feel very bad about it, but, Judge Lewis, if you will take this girl and do as you have agreed to do with her— adopt her as a child — I will agree for you to take her. ’ ’ Judge Lewis said, “I will take this girl and adopt her and raise her, and she shall be well cared for and have a good education and shall be as my own child, I will treat her as my child.” On cross-examination the witness’s attention was called to a statement in his deposition taken before the trial in which he said that he was not undertaking to give the language of Judge Lewis, but the impression that it made on him at the time, and he answered, ‘ ‘ That is right; that is what I am stating to-day.” Again in the deposition he was asked if he pretended to give the exact language used, he answered, “No, sir. That is my recollection in expressing their thoughts. Every man don’t always use the same language to express the same thoughts. ’ ’ He had stated in his deposition that Asa Kelim told the little girl good bye when she was going to get in the buggy and he told Judge Lewis good bye also, but in his testimony on the trial he said he was not positive, but thought Mr. Kelim kissed the child good bye at tha.t time. In the deposition the witness also- stated that when Judge Lewis came to Mr. Kelim’s that morning he said: “Mr. Kelim, are you willing to sign the papers that we spoke of, giving me the care and control of this child?” The substance of Mr. Kelim’s answer was that though it grieved him much to sign away his own flesh and blood, yet knowing Judge Lewis so well he would do it.

The next witness, familiarly called by the attorneys “Tom or Uncle Tom,” though of no kin to any one connected with the suit, testified that he heard Judge Lewis make a statement on the day he came to Grant City to get -Sally. The talk occurred out on the street opposite the hotel, there were five or six people standing there and all were talking it over, and Judge Lewis said: “Yes, Sally is going home with me and I am going to have her adopted or going to adopt her. ’ ’ On cross-examination he was asked if he undertook at this date to repeat the exact words he heard on the street thirty years ago1 and he answered no. Then the witness was asked: “Did he use the word ‘adopt’ at all, Tom? A. It was something that way.” On re-examination he was asked if he was not positive as to the words he did remember; to this the witness gave a rambling prelude and then said: “He says, ‘Yes, we are going to take Sally.’ He spoke then tbat he was going to have her adopted, or something about that amount. That is about as near as I can recollect. It has been a long time ago, boys. ’ ’ The whole of this witness’s testimony shows that it was of no probative value.

The next witness, a daughter of Asa Kelim’s, who at the time referred to was about 15 years old, testified in effect as follows: It was between sundown and dark when Judge Lewis sent the message to have Sally brought to town for him and his wife to see. The witness was not present when the message came and therefore could not say who brought it; she was out where they were milking and the children came out there and told her. “In the morning mother wanted me to go up town on some business that she had; I went up there, and we heard or I knew that Sally was going over to the hotel. I done my trading and Sally came along — her and father — going out to the graveyard; I went with them out there. . . . Then we went hack to the hotel. . . . Now, did you hear any conversation between Judge Lewis and your father concerning Sally? A. I did. Q. Tell what it was? A. As they were fixing to leave for Albany, Judge Lewis — I heard Judge Lewis tell my father that he would do as he said —that he would adopt Sally as his child and that he would educate her, and, at his death, she should heir equal with his heirs. Q. Was this at the hotel or farm? A. That was in front of the hotel. ... It was just as they were fixing to leave in the buggy. . . Q. What did your father say? A. He said: ‘If you will do that, Judge Lewis, I will give her to you, feeling it is my duty and the best I can do for Sally’ . . . He shook hands with Mr. and Mrs. Lewis, and, when he went to shake hands with Sally, she was on the other side of the buggy from him, and Sally hopped down from the buggy and went aronnd to the side father was on, and dropped down- on her knees, and kissed him good bye, and when they parted, she was crying and so was he. ’ ’ On cross-examination she was asked if she was sure she had repeated the exact words of the conversation, she said, “No; not exactly word for word. Bnt that was the meaning all right. ’ ’

The next witness to the alleged contract was the daughter of the hotel-keeper who had received the plaintiff when she came to the hotel and took her in charge to touch up her toilet. This witness was fourteen years old at the time. She stated that she had heard the conversation between Judge Lewis and Mr. Kelim at the hotel and was asked to state the conversation, she said: “Well, Mr. Lewis sent for Sally and she came there. He — this is the way I will state it; I want to be correct about it: He sent word for her and they had a conversation there. He said he had come up to adopt Sally. Is that what you want to get at? . . . They came there, Mr. and Mrs. Lewis, from Albany, and when they came they said they had come to adopt Sally Kelim.....By the Court: ‘You heard him say that to your father? A. Yes, sir. Emphatically. .....Q. Now, after they came, state what was said there between Judge Lewis and Uncle Asa Kelim? A. Uncle Asa said that he could have her but no other person could and no person could have her without they would adopt her. . . . Judge Lewis said: ‘I want to take her and adopt her and raise her as my own, I don’t want to take her unless I can take her that way. ’ ’ ’ The witness then went on to corroborate what the brother had testified to about his proposing to Judge Lewis to take Sally on six months ’ trial, and also about the younger brother crying at the thought that her name would be changed and Judge Lewis soothing his apprehension on that point. Then the witness said: “They talked this matter over — the adoption papers. They talked over about adopting her, they said they would not take her that day, but she could go back to uncle Asa’s and stay all night with the family, and get her things ready and they would go down the next day after her.” Witness then said that Judge and Mrs. Lewis went down to Mr. Kelim’s the next morning and brought the child back with them, and when they got there Asa Kelim and his daughter, whose testimony is above given, were there to meet them.

We do not feel justified in consuming more space with the plaintiff’s evidence, the above is the strongest that was adduced at the trial to support her claim.

The general character of the evidence is of the most unreliable, that is, it rests alone in the memories of the witnesses attempting to recall conversations which occurred thirty years ago when they were fourteen or fifteen years old. Common knowledge of the natural infirmity of human memory admonishes us to alwayfe receive such evidence with great caution; even when we credit the witnesses with usual memories and common honesty we must charge them with common human infirmity. Perhaps the contradictions and discrepancies that appear in the different statements of the different witnesses are attributable to the infirmity of memory, but if so, it . renders their testimony on the whole no less untrustworthy; the plaintiff cannot ask us to excuse mistakes in their testimonies on certain points because of the natural frailty of human memory, and at the same time ask us to take as exact truth that which is essential to her case which rests on the same frail foundation.

According to the hotel-keeper when Judge Lewis arrived he at once said that he had come to adopt Sally Kelim and asked where she was, implying that up to that time he did not know where she was. The witness gave him the information that she was at her Uncle Asa’s and he sent a message there by some one, he did not remember who it was, and they came to the hotel, the uncle., the two boys and the girl, and stayed there “pretty near all day.”

According to the brother’s testimony he happened to be passing the hotel just at that time and the keeper came out and “asked me where Sally was; I said she was down at Uncle Asa’s and he said Judge Lewis is here and wants to get her and adopt her.” According to this witness when the uncle, the two boys and the girl arrived at the hotel the girl was taken to another room, but the uncle and the two boys were ushered into the room where Judge and Mrs.- Lewis were, and Judge Lewis asked where Sally was and on being told that she would be in in a few minutes he said that he had come to take her to raise and educate but would take her on no condition except to adopt her; the witness proposed six months’ trial but Judge Lewis would not hear to that, it was absolute adoption or nothing; then the uncle said he would give her up to Judge Lewis if he would adopt her, but on no other terms. If the testimony in support of this claim is in any part made up, the fact that the plaintiff’s name was never changed but she was always known by her own name, Sally Kelim, an unusual fact in case of a real adoption, we would expect that fact to be accounted for, and this witness has attempted to account for it. The contract as testified to by the witness was crisp, in its terms and was quickly agreed to. Judge Lewis began the negotiations by laying down his ultimatum, and it turned out that that was the ultimatum of the uncle also, so there was no difficulty in coming to terms. Then the uncle produced his letters of guardianship. According to this witness this occurred before the little girl had been brought into the room, but according to the testimony of the hotel-keeper’s daughter it occurred after she had arranged the child’s toilet and brought her in the room, for she heard it all. According to the brother the agreement was. concluded that day and they parted with the understanding that Judge Lewis and his wife were to call the next morning at the farm to get the little girl and take her to their home. Yet it would seem that when Judge Lewis and his wife came to the farm the next morning it was still a question whether he would be allowed to adopt the child because the same witness says one of the first questions Judge Lewis asked Mr. Kelim was: “Are you ready to sign the adoption'papers?” and Mr. Kelim said, “Yes, I am ready to sign them up to you, but I would not let anybody else have her. It grieves me awfully to sign away my right to her; but I will do it for you.” When this witness was testifying, as his cross-examination shows, he was under the impression that if adoption papers were to be executed it was his uncle who was to sign them. This was doubtless the opinion of the other witness also who claimed to have been present at that scene and undertook to tell what occurred; in his deposition taken before the trial his recollection then was that Judge Lewis’s question was, “Are you willing to sign the papers that we spoke of, giving me the care and control of this child?” So that, according to both these witnesses, it was still an open question that morning whether the uncle was willing to part with the child and if that is so then the agreement was not concluded the day before at the hotel. A very significant difference appears in the testimonies of these two witnesses; they both professed to have heard the same question propounded by Judge Lewis, one thinks the words “adoption papers” were used, the other “the papers that we spoke of, giving me care and control of this child. ’ ’ Crediting each with a desire to speak the truth, one, at least, is at fault in his memory on a very essential point — “adoption papers” signify one thing, papers “giving me care and control of this child” signify quite a different thing. A long time has elapsed, boyhood and girlhood have now developed into- middle-aged manhood and womanhood, the best of human memory is fallible, and if these two witnesses recollect what was said of the papers so differently why may not they and the other witnesses be honestly mistaken in the words used in the conversations 1 If papers for the uncle to sign were mentioned on that occasion there is more reason to conclude that the witness was correct who said they were papers giving Judge Lewis care and control of the child, for such were the only papers there was any occasion for the uncle to sign. A learned lawyer would have understood that he was uttering nonsense to have spoken of the uncle signing £ 1 adoption papers. ’ ’

To complete the scene at the farm house that morning: According to these two witnesses there were no papers produced or signed (at least they make no mention of it), but the little girl was brought out, her brothers and uncle bade her goodbye, she was put into the buggy with Judge and Mrs. Lewis, and they drove away.

The witness who was the daughter of Asa Kelim, and was, at the time in question, about fifteen years-old, remembers the event quite differently from the others, that is, as to time and place, but she recollects the essential words exactly as they do and gives them in the same form. We gather from her testimony that if Asa Kelim -took the little girl and her- two brothers to the hotel on the day before Judge Lewis came to the farm for her as the other witnesses testify, this witness did not know it. She was at home and out where they were milking when some of the children came out there and told her that a. message had come from Judge Lewis to bring Sally to- the hotel, and she said it was between sundown and dark. This witness. takes up- the scene the following morning, not at the farm, but in the town. Her mother had sent her up town that morning on some business, wbicb she attended to, and then she met her father and Sally, and they three went out to the graveyard, having first obtained a rose plant from one friend and a spade from another; then after planting the rose they returned to the hotel and Judge Lewis and his wife were getting ready to go to Albany, taking Sally with them. When they were in the buggy in front of the hotel ready to start the agreement on the one side to adopt and on the other to give up the child was reiterated. Then the parting came, Mr. Kelim shook hands with Judge and Mrs. Lewis and extended his hand to Sally, but she jumped out of the buggy and ran around to her uncle and kneeled down before him and kissed him goodbye. Why she should kneel down to kiss him is not explained, probably the peculiarity of the act fixed it in the memory of the witness. It was peculiar. It is difficult to reconcile the testimony of this witness with the statements of the other witnesses concerning the meeting of the parties at the hotel the day before, Judge Lewis’s going* to the farm the next morning (the same morning that this witness speaks of), the parting scene at the farm and the driving away in the buggy. There is no concurrence on any point with the other witnesses except the essential point that Judge Lewis declared that he would adopt Sally.

The testimony of the witness who was the hotel-keeper’s daughter still further confuses the subject. We have seen according to the testimony of two witnesses what occurred at the farm, the parting there and the departure of Judge and Mrs. Lewis with the child, leaving the uncle there. Yet according to this witness, when Judge Lewis with his wife and the child in the buggy reached the hotel, the uncle of the child and his daughter were already there to meet them, and not only that, but, according to the daughter’s testimony, Sally was there too, and, stranger still, they had been up town long enough for them to have made the pilgrimage to the graveyard and return.

This testimony of the plaintiff’s witnesses as to the contract is not satisfactory, even standing alone without reference to its application, but when we come to apply it to a man of the character and habits of Judge Lewis it is still less satisfying. The learned counsel for the plaintiff in their brief say: “He was honest and fair in his dealings, very intelligent, but very secretive. His most intimate friends did not understand him and knew but little of his transactions.” And yet we are asked to believe that in an important matter like this, affecting not only his business, but penetrating into the sanctity of his family, he was not only communicative but he took the whole community into his confidence. On his arrival at the hotel he informs the landlord that he has come to adopt Sally and asks him to send for her; not only in the public room of the hotel does he make the statement, but even out on the street, opposite the hotel, in a promiscuous gathering, of whom the witness who told of it was a sample and he suffered an unseemly jest to be made of the occasion; every where he went he proclaimed it. We cannot believe it, the witnesses have been mistaken.

In her petition the plaintiff says that while, she lived in his family Judge Lewis frequently told her that she had been legally and lawfully adopted by him and at his death she was to have an equal share of his estate with his own child. There was no proof to sustain that averment, but the averment itself in the petition in the light of the facts weakens the plaintiff’s case.- Take the character of the man as portrayed in the words of the plaintiff’s learned counsel and, without crediting him with even one kind sentiment, say of him only as the counsel have said: “He was honest and fair in his dealings,” and then believe, if you can, that while he was rearing this child in the bosom of his own family, he often told her that she had been legally and lawfully adopted and at his death would share equally with his own daughter in his estate, well knowing that the statement was not true and raising in her expectations that he knew could end only in cruel disappointment.

There is nothing in the undisputed circumstances of the case that would indicate that a moral duty lay on Judge Lewis to do more than he did for the plaintiff. The witnesses say that the uncle said he would not part with the child unless Judge Lewis would agree to adopt her, that is, he would not allow Judge Lewis, a man of wealth and high social standing, and for whom he had a high regard, to take the child into his family and give her advantages of education and refined rearing, which she could not have in his home, unless she was adopted. That testimony casts an imputation on the character of the plaintiff’s uncle. Why should he not have been willing to give the child that better advantage? It was all that her mother on her death bed had requested him to do,' according to the plaintiff’s own petition. If he had denied the child that advantage, if he had refused to let Judge Lewis take her to rear and care for, and if he had kept her in his own home because it gave him pain to part with his own flesh and blood as the witness said, could he have justified his own act in his own conscience? And it is equally incredible that Judge Lewis should have insisted on adoption as the only condition to rearing her; the uncle was the guardian, but if he was willing to let the child go the guardianship could easily have been changed if Judge Lewis had thought it worth while or if he feared any interference. And lastly, in this connection, the fact is that Judge Lewis, the methodical, careful lawyer, the just and upright man, never executed any deed of adoption, never changed the name of the child, but he did give hei‘ a good home, he did rear her iu the bosom of his own home and brought her forth a refined and well-educated woman, the social equal of the best in the land. We are satisfied that he did all that he agreed to do.

Passing from a consideration of the testimony going to show an oral contract to adopt, let us see what there is in the case to establish part performance. The plaintiff’s testimony shows a condition consistent with the theory that there was a contract to adopt; that is as much as plaintiff can claim for it, it does not show a condition inconsistent with any other theory.

When a court of equity is invoked to enforce an oral contract void under the Statute of Frauds on the ground of part performance, it recognizes and appreciates the danger that the statute was designed to avoid and grants relief only when it is sure beyond a reasonable doubt that to refuse its aid would result in allowing the statute to be made in that case an instrument to protect fraud. A court of equity, therefore, requires that a part performance relied on to take the case out of the statute should be of a character not only consistent with the reasonable presumption that what was done was done on the faith of such a contract, but also that it would be unreasonable to presume that it was done on any other theory. Can it be said that the mere fact that an orphan child in indigent circumstances was taken into the' family of comparatively wealthy people, reared and educated even on an equality with their daughter, is reasonably consistent only with the theory that she was an adopted child — consistent only with the theory that at his death his own daughter should make equal division with her of the estate which was the product of his whole life’s work? If that is so, how dare a man take such a child into his family? It is said in the brief for appellant that declarations máde by Judge Lewis in his lifetime to the effect that he had merely taken the plaintiff to rear and educate, were self-serving- declarations and incompetent as evidence. If that is so then the danger is greatly increased. The law provides for the making of a deed of adoption and placing it on record, but it makes no provision for the writing and placing on record, by the man who takes an orphan child into his family, of a proclamation to the world that he has not adopted the child.

Appellant contends also that Mrs. Holden, the only child of Judge Lewis and the only surviving member of the family, is incompetent as a witness in this case; if that is so it only further illustrates the wisdom of the requirement in a case like this that the evidence for the plaintiff must be clear, consistent, convincing beyond a reasonable doubt.

To say that the testimony in this case does not measure up to the standard we have laid down in such cases does not necessarily impeach the veracity' of the witnesses; it implies rather that, taking all the circumstances together, the probabilities are that they have not accurately remembered the conversations they think they heard thirty years ago when they were but fourteen and fifteen years old.

It is insisted that the court erred in allowing Mrs. Holden, the daughter of Judge Lewis, to testify, and also in admitting evidence of statements by Judge Lewis to the effect that he had only taken the plaintiff to raise. We do not deem it necessary to go into those questions, because we have not considered either the testimony of Mrs. Holden or the testimony of the so-called self-serving declarations of Judge Lewis. We have considered the case as to the alleged- contract on the plaintiff’s evidence alone, and whilst we hold that it was evidence tending to prove the alleged oral contract and therefore plaintiff was entitled to have it weighed, vet when weighed and applied to the undisputed facts of the case we have found it not sufficient.

The chancellor took the correct view of the case. The judgment is affirmed.

Lamm and Graves, JJ., concur; Woodson, J., not sitting.


source: Caselaw Access Project

author: WOODSON, J.

license: Public Domain

text:
    LOUIS H. BRECKER v. CHARLES FILLINGHAM et al., Appellants.
    Division One,
    February 26, 1908.
    1. EJECTMENT: Accretions: Issues of Fact. Where there was substantial evidence that the whole of plaintiff’s patent lands were not washed away by the action of the river, and that the lands in question were accretions to those not washed away, the appellate court will not undertake to determine whether or not they were all washed away before the “made” land began to form. Nor will it say on which side was the preponderance of the evidence. It is for the trier of the facts (in this case, the court sitting as a jury) to determine the weight to he given to the testimony.
    2. EVIDENCE: Map: Certificate. A map of surveys kept in a United States office, to which is appended a certificate that “this map, as far as it goes into detail, is a correct copy of an original map on file in this office,” is not competent evidence. On its face it does not purport to he a true and complete copy.
    Appeal from St. Louis County Circuit Court. — Hon. Jno. W. McElhmney, Judge.
    Affirmed.

      R. jS'. Stevens and Bryan S Christie for appellants.
    (1) All records and exemplifications of office books kept in any public office of tbe United States, or of a sister State, not appertaining to a court, shall be evidence in this State, if attested by the keeper of said records or books and the seal of his office, if there be a seal. R. S. 1899, sec. 30.98. (2) Where there is no substantial evidence to support the finding and judgment of the trial court, the appellant court will reverse the judgment.

      W. F. Broadlmrst and G. W. Wilson for respondent.
    (1) While the evidence submitted at the trial by plaintiff and defendant respectively, was conflicting, the evidence produced by plaintiff tending strongly to support his contention, while the evidence offered by defendant tended to support his contentions, the findings of the court are supported by evidence produced, and this court will not undertake to say on which side the weight of evidence lay. Culberson v. Hill, 87 Mo. 553; Everman v. Eggers, 106 Mo.' App'. 732; Dobbins v. Humphreys, 171 Mo. 202; James v. Life Assn., 148 Mo. 16; Davis v. Railroad, 46 App. 185; Weller v. Wagner, 181 Mo. 151; Golden v. Tyler, 180 Mo. 204; Bray v. Kemp, 113 Mo. 552; Blanton v. Dold, 109 Mo. 69; State v. Richardson, 117 Mo. 590. (2) The trial court had before it the witnesses who testified; had the opportunity of observing their demeanor on the stand and their manner in testifying. It was in much better position to judge as to the weight to be attached to the testimony of the respective witnesses than this court can possibly be. Even in an equity proceeding, where the right of this court to review the evidence is unquestioned, the uniform practice of this court is to defer to the findings of the trial court on issues of fact, and to refuse to reverse a judgment of the lower court on the'ground that the findings were against the weight of evidence. Johnson v. Realty Co., 177 Mo. 597; Kittridge v. Bldg. Assn., 103 Mo. App. 361. (3) The court committed no error in excluding from evidence copies of maps of the Missouri River Commission.
   WOODSON, J.

This action was brought in the circuit court of St. Louis county. The petition consists of two counts, one in ejectment, and one under the provisions of section 650, Revised Statutes 1899', to determine and quiet title to certain lands on what is known as “St. Charles Island” in the Missouri River.

The facts disclosed by the evidence may be briefly stated as follows: The island as originally surveyed by the Government contained about 385.01 acres, and consisted of parts of sections 5, 7, 8,17 and 18 in township 56 of range 5 east. By patent, dated January 14, 1836, the Government granted this property to one George Collier. Collier and wife conveyed to Atkinson in 1847. In 1859 Atkinson conveyed to Thomas W. Cunningham, as assignee, for benefit of his creditors. In .1859 Cunningham, for the purposes of sale, had the island subdivided into lots by one Theodore Bruere, county surveyor of St. Charles county, Missouri. By these conveyances the plaintiffs, Brecker and Cottle, acquired title to lots 1, 2, 3, 4 and 7 of Bruere’s subdivision of the island.

At the point where this island is located the Missouri river runs north and south, the foot of the island being north and the head south. At the time the island was surveyed by the United States surveyors the main channel of the Missouri ran on the eastern side of the island, separating it from the St. Louis county shore, and the island being separated from the western or St. Charles county shore by a narrow slough. At some time after the survey of the island by the Government surveyors, the river began encroaching upon the St. Louis county shore to the east of the island, and at the same time adding by accretion to the eastern and northern parts of the island, until, in 18591, it contained by actual survey 1,000 acres instead of 385 acres, as when originally surveyed by the Government. Lots 1, 2, 3, 4 and 7 of Bruere’s subdivision of the island in 1859 were situated on the extreme southern end of the island, lot 1 being the southern lot lying next to the river, lot 2 adjoining it on the north, lot 3 adjoining lot 2 on the north, lot 4 adjoining lot 3 on the north, and lot 7 lying north of lot 4. The defendants or their predecessors in title owned lands in St. Louis county and bounded by the Missouri river. At the time of Bruere’s survey of the island, in 1859, the main channel of the river continued to- flow between the island and the St. Louis county main shore, the main channel of the river at that time flowing between said lots 1, 2, 3, 4 and 7 on the island and the main shore lands in St. Louis county, now-owned by the defendants.

The main channel of the river continued to flow on the eastern or St. Louis county side of the island, thus separating the St. Louis county shore and the island, until the year 1883. In the spring or summer of 1883, during a season of very high water, the main channel of the river shifted from the eastern to the western side of the island, and at all times since the high water of 1883 the main channel of the river has continued to flow on the western side of the island. That is to say, from 1883 down to the present time the river has run between the island and the St. Charles county shore.

There is no dispute about.the fact that a portion of the old original island is still standing — some bearing trees and corners and monuments noted by Bruere in his survey in 1859 being still in existence on the ground. While there is a sharp conflict in the testimony as to the exact location of the river from 1875 up to 1883, the witnesses all agree that up to the date of the change in the channel in 1883 the river flowed on the east side of the island, and that after the channel of the river shifted to the west side of the island, what had been the channel of the river prior to the shift was left with sloughs running through it, and within a few years after the channel shifted to the western side of the island, the upper or southern ends of these sloughs closed up and the river ceased to flow through them, so that the entire river ran and has continued to flow on the western side of the island. At the date of the trial and for a number of years prior thereto the whole river was running west of the island. The entire river is now and has been for years past between the island and the St. Charles county shore.

Up1 to this point there is practically no dispute between the parties as to the facts of the case; but here is the initial point of the parting of their ways.

The appellants introduced testimony tending to prove that about 1871, or 1872, the river began cutting-off the upper or south end of the island, and continued to do so up to 1883, at which time all of lots 1, 2, 3, 4 and 7, owned by respondent, were completely washed away and the main channel of the river occupied the original site of respondent’s lands; that as the river washed the south end of the island off it added by accretion to their lands on the St. Louis county shore, and that when the river finally shifted to the west side of the island, in 1883, the entire land in controversy was added by accretion to their main shore land in St. Louis county.

The respondent, however, introduced testimony, on the other hand, which tended to prove that said lots were never entirely washed away, and that after the shift of the channel in 1883 the portion of the lots that had been washed away were restored by accretion.

The appellants offered in evidence certain surveys or maps of said premises, which were, by the court, excluded, and proper exceptions were saved.

There was a trial before the court without the intervention of a jury, and the findings of fact were for the plaintiff, and judgment was entered accordingly.

After taking the proper preliminary steps, the defendants appealed the cause to this court.

I. There is no complaint at the action of the court in giving or refusing instructions. Appellants concede that the action of the court in that regard was unobjectionable; hut they do complain that there is no evidence in the record which tends to support respondent’s theory of the case — that is, that all of lots 1, 2, 3, é and 7 were never all entirely washed away, and that after the change of the channel of the river, in 1883, from the west to the east side of the island, the portions thereof, which had been washed away were restored by accretion. For that reason, they contend that the judgment should be reversed, and the cause remanded for a new trial.

We are unable to lend our concurrence to that contention. There were many witnesses, thirty-odd in number, who testified in the case, and the issues were sharply contested on each side, and there was much evidence introduced by both parties tending strongly to prove their respective theories of the case.

It is not for this court to pass upon the weight of the evidence; that is within the province of the triers of the fact. Where the evidence introduced is conflicting, the jury or the trial court are the sole judges of the credibility of the witnesses and the weight to be given to their testimony; and this court will not usurp their prerogative by saying which side has the preponderance of the evidence. Their finding is conclusive upon this court. [Culbertson v. Hill, 87 Mo. 553; Dobbins v. Humphreys, 171 Mo. 198-202; Weller v. Wagner, 181 Mo. 151.]

This court has repeatedly held, that where the trier of the facts has the witnesses before him, the opportunity of observing their demeanor on the witness stand and their manner in testifying, it places him in a much better position to judge of the weight to be given to the testimony of the respective witnesses than this court could possibly have.

And that, even in equity cases, where this court has the right to review and weigh the evidence, the usual practice is to defer largely to the finding of the trial court on issues of fact, and refuse to disturb a judgment of the lower court on the grounds that the findings were against the weight of the evidence.' [Johnson v. Realty Co., 177 Mo. 595, 597; Kittredge v. Bldg. Assn., 103 Mo. App. 361.]

IT. Appellants next insist that the action of the court in excluding three maps offered in evidence by them was error.

The record shows that two of them offered were maps of surveys made under the authority of the United States, showing the general trend of the current of the Missouri river, its channel, the location of St. Charles Island, and the general topography qf the situation in the vicinity of the lands in suit. The survey mentioned in the first map was made between May 11th and 16th, 1879, while the latter bears no date; and both bear the following certificate, except the second is dated January 15th, 1904:

“I, H. M. Chittenden, Captain, Corps of Engineers U. S. Army, hereby certify that I am by law the keeper of the records in which the foreg*oing surveys are recorded, and that this map, as far as it goes into detail, is a correct copy of an original map on file in this office, made under the direction of the Missouri River Commission. H. M. Chittenden,
“Captain, Corps of Engineers U. S. Army.
“Sioux City, Iowa. November 28, 1903.”

Section 3098, Revised Statutes 1899, provides that all records and exemplifications of office books kept in any public office of the United States, or of a sister State not appertaining to a court, shall be evidence in tbis State if attested by tbe keeper of said records or books and tbe seal of bis office, if there be a seal.

Under tbis section of the statute tbe two maps mentioned were admissible in evidence, if properly certified.

Tbe respondent contends, first, that they were not properly certified, and, second, that they shed no light upon tbe issues joined; and, even if admissible, no barm was done appellants by their exclusion.

As to tbe first contention, it will be noticed that tbe certificate states “that tbis map, as far as it goes into detail, is a correct copy of tbe original,” etc. We do not know just what tbe italicized words as used mean, and there is nothing in tbe record which shows their meaning; but it is clearly inferable from tbe use of those words that tbe map> upon which they are endorsed is not a full, true and complete copy of tbe original which is on file in Captain Chittenden’s office. We are unable to determine what parts of tbe map have been omitted from tbe copy; nor are we able to say whether or not those omitted portions are material to tbe issues involved; they may or may not be material. No one but tbe court can pass upon that question. Captain Chittenden could not do so for several reasons — first, because be was not tbe judge elected to try tbe case; second, be was not familiar with tbe issues involved, and could, therefore, know nothing regarding tbe relevancy of tbe omitted parts; and, third, because, as presented, tbe map might be misleading.

As to the second contention presented by respondent, we will state that we have carefully examined tbe maps closely, in connection with all tbe oral evidence introduced, and we are wholly unable to see in what possible way their exclusion could in any manner have injured tbe appellants. They, in a general way, show the island, the channel of the river and the trend of the current, and nothing more. All of those things were testified to by all the witnesses, and conceded to be as testified to by all the witnesses.

As to the third map offered, showing the surveys made by Mr. Edgar Rapp, it is sufficient to state that while it shows the location of the lots in suit, the channel and bed of the river at the times stated in the evidence, yet the record fails to show that the appellants offered that map in evidence, or that the court excluded it as such; but it does appear that the map was before the court and that it saw and inspected it; so they received the benefits thereof without its having been formally introduced in evidence.

• For the reasons stated, we are of the opinion that there is no reversible error in the record, and that the judgment should be affirmed; and it is so ordered.

All concur.


author: CRAVES, J.

text:
    W. F. POTTER v. DANIEL SCHAFFER, Appellant.
    Division One,
    February 26, 1908.
    1. MORTGAGE: Failure to Pay Interest: Foreclosure. Where there are a first and second deed of trust on land, the mortgagee cannot foreclose under the second for failure to pay interest due under the first.
    2. -: -: Tender: Redemption: Pleading. Where the interest due was tendered prior to steps taken for a sale, and was refused, and there was a subsequent sale for failure to pay interest before the principal was due, a bill to redeem will be sufficient if it ayer such facts and in 'addition contain an offer to do equity by the payment into court of such a sum as the court may find should be paid. The law does not require the tender to be kept good by a deposit in court. Nor does the law, where the creditor says he will not accept payment, require the debtor to actually count out the money; the law is met by an offer to pay accompanied by an apparent ability to pay.
    3. -: -: Effect of Tender. By the payment of accrued interest and costs prior to sale, or a tender thereof, the debtor has the right to stop the sale; and if, notwithstanding an offer to pay, the creditor through the trustee proceeds to foreclosure sale, the debtor has the right to redeem, unless that right is denied by some agreement in the contract.
    4. -: -: -: Statute. The statute (Sec. 4343, et seq., R. S. 1899) providing for the giving of a bond, etc., where the property is bought in by the cestui que trust, as a prerequisite of the mortgagor’s right to redeem, is not exclusive, but merely cumulative. It does not purport to cover yases of equitable cognizance, and a failure to comply with it does not preclude a mortgagor having peculiar and special equities from urging his rights in a court of equity.
    5. LACHES. The doctrine of laches does not apply where the defendant has acted in open and known hostility to the plaintiff’s right and has not been misled by apparent acquiescence on his part. Where defendant, after wrongfully causing plaintiff’s property to be sold under a deed of trust, bought it in, and took possession in open opposition to the wishes of the mortgagor, no consideration of good faith requires the mortgagor to bring his suit to redeem at the very earliest opportunity.
    6. -: Redemption: Interest and Rents. In a suit to redeem after wrongful foreclosure sale under a deed of trust, if interest is allowed the mortgagee in possession, the rents and profits should be deducted.
    Appeal from Schuyler Circuit Court. — -No». Nat. M. Shelton, Judge.
    Affirmed.

      Fogle S Fogle and E. R. McKee for appellant.
    (1) Plaintiff’s petition does not state facts sufficient to constitute a cause of action. Jopling v. "Walton, 138 Mo. 485. (2) There was no tender in this case. Landis v. Saxton, 89 Mo. 375; Hudson v. Glencoe Gravel Co., 140 Mo. 103; secs. 1565 and 1564, R. S. 1899; Berthold v. Reyburn, 37 Mo. 586; Voss v. McGuire, 26 Mo. App., 452; Woolner v. Levy, 48 Mo. App. 469. (3) But if there was a tender after default in the payment, still appellant’s deed would he good. A tender after maturity of the amount of the debt secured by a deed of trust on land, does not extinguish the debt or lien, nor operate to defeat a sale and a trustee’s deed thereunder. Hudson v. Glencoe Gravel Co., 140’ Mo. 103; Cockrell v. Kirkpatrick, 9 Mo. 697; Raymond v. King, 58 Mo. App. 303; McClung v. Trust Co., 137 Mo. 106; Ruppel v. S. & B. Assn., 158 Mo. 613; Knollerberg v. Nixon, 171 Mo-. 445; secs. 1564, 1565, R. S. 1899; McGuire, v. Brockman, 58 Mo. App. 307; Kline v. Vogel, 90 Mo. 245; Landis v. Saxton, 89 Mo. 375. (4) A tender to be available must be kept good. Berthold v. Reyburn, 37 Mo. 587; Railroad v. Clark, 119 Mo. 357; Voss v. McGuire, 36 Mo. App. 452. (5) Plaintiff saw the notice of sale in the paper, was in town the day of the sale, saw the sale conducted, sat by and saw the defendant take possession of the farm, consented to it, saw the defendant improve it, fence it, cultivate it, pay taxes thereon, make lasting and valuable improvements, and waited for three years and more before he brought this suit to redeem; he is, therefore, guilty of such laches as equity will not tolerate. Laches is an equitable defense and there is no artificial, fixed, or determinate rule on this subject, but each case, a.s it'arises, must be decided according to its own particular circumstances. Landrum v. Bank, 63 Mo. 48; Kline v. Vogel, 90 Mo. 239; Badger v. Badger, 2 Wall. 94; Sullivan v. Railroad, 94 U. S. 807; Twin Lick Oil Co. v. Marbury, 91 U. S. 591; Bliss v. Prichard, 67 Mo. 181; Evans v. Snyder, 64 Mo. 516; Stevenson v. Saline Co., 65 Mo. 425; Bradshaw v. Gates, 67 Mo, 221; Kelley v. Hurt, 74 Mo. 561; Burgess v. Railroad, 99 Mo. 497; Wall v. Beedy, 161 Mo. 625. (6) Plaintiff stood by and witnessed the sale and afterwards demanded the surplus, over and above the debt and the cost; he is, therefore, not entitled to redeem in this case. He is estopped from redeeming. White v. Smith, 174 Mo. 186. (7) Plaintiff is not entitled to redeem in this case for another reason, because under the statute he must give notice to the trustee or cestui que trust that he intends to redeem said land, and he must within a reasonable time file with the court or clerk thereof in vacation a good and sufficient bond to pay all the interest and waste that ■may be committed on the land. This the plaintiff has not done and therefore must fail on the first ground. Secs. 4343 and 4345, R. S. 1899; Life Ins. Co. v. Rogers, 155 Mo. 311; Sheridan v. Nation, 159 Mo. 34; Wamsley v. Dougherty, 163 Mo. 298. (8) To establish a tender, proof must be clear that the full amount due was absolutely and unconditionally tendered. Tuthill v. Morris, 81 N. Y. 94; Parks v. Allen, 42 Mich. 482; Canfield v. Conkling, 41 Mich. 371; 1 Jones on Mortgages (6 Ed.), sec. 893. (9) The mortgage covers not merely the debt, but the cost of a suit by the mortgagee to recover the debt or to enforce the security. Rosin v. Hall, 56 Me. 142; Hird v. Coleman, 42 Me. 182; Allen v. Robbins, 7 R. I. 33; 1 Jones on Mortgages (6 Ed.), sec. 981 a. (10) The right of redemption is barred by a foreclosure properly made, except when a further right is given by statute. Weiner v. Heintz, 17 111. 259; Stoddard v. Forbes, 13 Iowa 296; Ballenger v. Bourland, 87 111. 513; Martin v. Ward, 60 Ark. 510; sec. 4371, R. S. 1899; Bldg. Inv. Co. v. Dunsworth, 46 Mo. 369. (11) The deed is prima-facie .evidence of default in payment of the debt, and that the sale was made at the request of the holder of the note, and the recital in the deed that certain interest coupons are due and unpaid, is prima-facie evidence of that fact. Morrison v. Herrington, 120 Mo. 674; Bldg. & Inv. Co. v. Dunsworth, 146 Mo. 361; Hume v. Hopkins, 140 Mo. 65. (12) The statute provides a method and remedy for the mortgagor in the redemption of his land sold under foreclosure proceedings and is .exclusive and this method alone must be followed. This the plaintiff did not do in this case and is therefore barred. McHen v. Wells, 39 Mich. 175 ; Scobby v. Kinningham, 131 Ind. 552; Herdman v. Cooper, 138 111. 583; Thonley v. Moore, 106 111. 496; White v. Smith, 174 Mo. 200.

      John D. Smoot, G. E. Murrell and Eigbee & Mills for respondent.
    (1) The evidence abundantly establishes that the February interest was actually tendered to Baker, and also to Schaffer, on February 20, and the printer’s bill for the first insertion of the notice of sale was paid by plaintiff at the direction of George R. Baker, who ordered the foreclosure on behalf of defendant. That was sufficient to stop' the sale; a sale after that would savor of oppression, and will be set aside. State ex rel. v. Ross, 136 Mo. 273; Swon v. Stevens, 145 Mo. 398. (2) Schaffer was the owner of the note at the time of the sale, at the time of the tenders, and long before. He was both buyer and seller; the sale was not made for the honest purpose of realizing the interest' or debt; not only were the tenders oppressively refused, but the surplus was pocketed, according to Figge’s evidence. Under the circumstances disclosed by the evidence in this case- “equity will not stop to inquire for particular fraud, since fair dealing is not to be expected under such circumstances, but will set aside the sale on the prayer of the1 debtor.” The power of sale was not executed in good faith for the best interests of all the parties concerned. Polliham v. Revely, 181 Mo. 634; Axman v. Smith, 156 Mo. 286. (3) The petition pleads the previous tenders and their wrongful and oppressive refusal; offers to bring into court and pay defendant any sum that may be found due him; prays an accounting and that plaintiff be permitted to redeem; that the sale and conveyance under said deed of trust be set aside, etc. When the court took the account and ascertained the sum due defendant, plaintiff brought that sum into court in cash and tendered it to defendant in open court, which tender and its refusal are recited in the decree of the court. The petition states a good cause of action. In such ease, where an accounting of rents, taxes, interest, etc., is sought, a tender before suit is not necessary, nor need the plaintiff bring any money into court until the amount due is ascertained. Kline v. Vogel, 90 Mo. 250; Jopling v. Walton, 138 Mo. 490; Lipscomb v. Ins. Co., 138 Mo. 17. It is suggested by appellant that the tenders were not good. Plaintiff had the money in his hand and offered to pay the interest and in fact paid the costs. Baker and Schaffer each refused actual tenders. “A tender is good without actual production of the money, where the party to whom it is due refuses to accept.” Stephenson v. Kilpatrick, 166 Mo. 262. In, Teaman v. Lepp, 167 Mo. 61, Kline v. Vogel, supra, was approved. Railroad v. Clark, 1191 Mo. 372. (4) Appellant insists plaintiff is barred by his laches; that he consented to defendant’s taking possession, and waited more than three years before bringing suit'. Plaintiff testified: “I told him to stay out. I went there to haul off some posts, he came, down and tried to stop me. I knocked him down and got the posts and went away peacefully.” Was this acquiescence? Evans v. Railroad, 64 Mo. 456; 18 Am. So Eng. Ency. Law (2 Ed.), 105. Plaintiff had the full statutory period in which to bring his action. Kline v. Vogel, 90 Mo. 250:
   CRAVES, J.

Plaintiff was the owner of a tract of land in Schuyler county upon which he had given two deeds of trust, the first to secure a note of $1,800, and the second to secure a note of $700. These notes were given to different parties but were both purchased and owned by the defendant. One O. Pigge was the trustee in the deed of trust securing the $700 note. Said Figge at the request of defendant sold the land under such deed of trust and defendant became the purchaser at the price of $800, although plaintiff’s equity is shown to have been far in excess of that sum. The sale was made prior to the maturity of the note, but for an alleged default in the interest due thereon. The action is one to redeem, in which an accounting is asked, accompanied' by an offer to pay and bring into court such sum as the court might find to be due. The material portion of the petition reads:

“The defendant became the owner and holder of said note and caused and procured said C. Figge, trustee as aforesaid in said deed of trust, to advertise said land for sale under said deed of trust on March 24, 1902, at the south door of the court house in the city of Lancaster, Missouri, for an alleged default in the payment of said note; that said note was not then due and-only one instalment of interest was then due and unpaid and plaintiff tendered to C. Figge, trustee, and to defendant all the interest then due and payable on said note and all costs incurred in so advertising said land for sale, and by the direction of defendant plaintiff paid the costs of so advertising said lands for sale under said deed of trust, and demanded that defendant and said trustee discontinue said sale, but the defendant and said trustee wrongfully and oppressively refused to accept said tender and offer of payment of interest and costs so accrued and wrongfully, oppressively and without any authority so to do, proceeded to and did on said March 24, 1902, against plaintiff’s protest, offer said lands for sale under said deed of trust, and sold same to defendant for the pretended consideration of $800, and thereupon said C. Figge, as trustee aforesaid, executed to defendant a trustee’s deed under said deed of trust and sale, conveying said lands to defendant, and same was filed for record and recorded in the deed records of this county:
“Plaintiff says that the provision in said note for the payment of eight per cent semi-annual interest was and is usurious and violative of the law regulating the rate of interest in this State and forbidding the compounding of interest more than once a year, as provided by section 3711 of the Revised Statutes of Missouri; that said lands were sold in a lump and not in their smallest legal subdivisions, and for one-seventh of their value, a grossly inadequate consideration.”

The answer was a general denial and a plea of laches. By the judgment plaintiff was permitted to redeem upon the payment of $2891.44, within thirty days, which sum plaintiff brought into court forthwith, but defendant refused the same and thereupon the trustee’s deed was set aside and by the decree for naught held. Defendant thereupon appealed, after unsuccessful motion for new trial.

I. The evidence upon the question of tender of the interest due upon the note of $700 is conflicting. The sale was under the deed of trust securing the note of $700. Of this there is no question. Nor is it claimed that reference is made in this deed of trust to the one securing the $1800'. Both notes were at the time held by defendant, and the interest on both was due, but the principal on neither was due, unless made due by default of interest. The evidence of plaintiff and his corroborating witnesses is to the effect that plaintiff tendered the interest on the $700 note before the advertisement under the mortgage or deed of trust. The evidence for plaintiff further shows that after the advertisement was published for one week, by directions of counsel for the defendant he paid the accrued costs of the publication, but was afterwards informed that the client had repudiated the action of counsel. This evidence of the plaintiff and his witnesses is controverted by defendant’s, and it became a matter for the chancellor to decide. Suffice it to say that we have examined this evidence, and agree with the conclusion of the court, nisi, to the effect that a tender was made. When we say a tender was made, we mean in the broad sense of a legal tender. The evidence is sufficient to show and for the court to find that the plaintiff was ready and willing and offered to pay the interest and all costs under the second mortgage. This is the only one under which sale was made. The finding of the court upon this one question is abundantly sustained by the evidence, and without yielding the right of this court to review the evidence, in equity cases, which review we have made, • we concur in this finding of the trial court.

II. It is contended, among other things, that the petition fails to state facts sufficient to constitute a cause of action. On this point we are cited to the ease of Jopling v. Walton, 138 Mo. 485, wherein the writer hereof was of counsel for the defendant, and successfully interposed a demurrer to plaintiff’s bill. But the point upon which the demurrer is sustained by this court in that case, is not the proposition involved here. In the case at har we have pleaded a tender of the interest due upon the note prior to steps taken for a sale. We have a refusal of this tender and a subsequent sale. In such case the law does not require the tender to be kept good by deposit in court; but when it appears that such tender has been made and thereafter a sale, a bill to redeem will be sufficient if it aver such facts and in addition contain an offer to do equity by the payment into court of such an amount as the court may find should be paid upon a decree for redemption.

Upon this point this court, in Jopling v. Walton, supra, following Kline v. Vogel, 90 Mo. 239, said: “Plaintiffs allege in their petition a willingness to pay whatever may be found due to the defendant on the note secured by the mortgage held by him, and thus comply ‘with that just rule which requires that, ‘He who seeks equity, must do equity.’ In such circumstances the court rendering the decree, if in favor of redemption, will make it conditional upon the payment of the amount due upon the mortgage debt, and thus do that which is equitable and just, and that is all the law requires. It follows that this ground of demurrer was not well taken.” This conclusion was reached where there was a contention raised by the demurrer to the effect: “One of the principal grounds of objection to the petition is, that it does not allege a tender to defendant before the commencement of the suit of the amount of the debt and interest due upon the mortgage held by defendant, and under which the land was sold to him.”

But in the case at bar the court found, and the evidence authorized such finding, that there was a tender of the interest due upon the $700 note. So far as the right to foreclose after the tender, the case would stand as if there had been an actual payment of the interest. "What one tenders or offers to do, must for the purpose of a case of this character be considered as done.

In State ex rel. v. Ross, 136 Mo. l. c. 273, we said: “In Philips v. Bailey, 82 Mo. 639, this court unani-’ mously held that tender before sale of the interest due without the principal is sufficient to prevent a sale by a trustee under a deed of trust, although the deed provided that in case of failure to pay the interest as it becomes due, the entire debt, principal and interest, should mature and the property be sold to pay the same. That to permit a sacrifice of the owner’s rights after such a tender would savor of oppression. And the same conclusion was reached in Whelan v. Reilly, 61 Mo. 565.”

This foreclosure was under the second deed of trust and none other. As to the conditions of the prior deed of trust we have nothing to do, for the reason that no action was taken thereunder. That there may be no misunderstanding and to state it in plain terms, we hold that where a sale is made under a deed of trust on the ground that there has been default in the interest, and it appears or is found that there has been a tender of the interest and. costs prior to sale, then the debtor is entitled to redeem upon making proof of such facts. In other words, unless precluded by specific terms of the contract the debtor may stop the sale under a deed of trust at any time prior to sale by the payment of the accrued interest and costs, or if payment is refused, and tender is made, the same end is reached. Such a tender, where the party entitled to payment says he will not receive payment, does not mean that the party making the tender must actually count out the legal tender for such payment, but it is sufficient if he offer to make the payment. The law does not require him to do an unnecessary act, and if ‘he has been informed in advance that the money will not be received, it is not necessary to make a good tender, that the actual cash shall be exhibited or counted out. [Stephenson v. Kilpatrick, 166 Mo. 262.]

In such case the demand of the law is met by an offer to pay where accompanied by an apparent ability to pay, as distinguished from a demonstrated ability to pay by an actual counting out of the cash. So that in such case if it appears that the party offered to pay, and at the time had cash in hand with which to pay, then the tender is as efficient as if the exact amount had been counted out to the payee. On the other hand if there is no refusal to receive payment, then the strict rule of tender should be followed. In this case the pleadings and the evidence sufficiently showed a tender, and were not subject to the objection herein urged.

HE. Nor is it required in a case of this kind to plead or show anything further than the offer to pay. The law gives to the debtor the right to pay interest and accrued costs, prior to sale, and thereby stop the sale. The same law which gives him this right, precludes the creditor from refusing a tender and proceeding with the sale. To hold otherwise would be to destroy the rule. The rule is founded In equity, because if prior to sale the debtor pay the interest and all accrued costs, the creditor has been in nowise hurt. We are not saying that these rights to the debtor may not be released by the peculiar wording of a contract, but such is not the case under consideration, and a judgment thereon would be beside the record. A tender properly made in a case such as we have here, is sufficient to authorize a setting aside of the deed made by the trustee and the granting of the privilege to redeem. Nothing more was done in this case.

IV. The next point urged is that there was no compliance with the statute providing for the redemption of property bought in by the cestui que trust. It is true that no bond was given or other steps taken as provided by this statute. The only question is whether or not this statutory remedy is exclusive. We think not. Such remedy is merely cumulative and is not exclusive. It was not intended by this statute to divest courts of equity of tlie power to grant-relief in a proper case, whether such statute has been followed or not. In fact, the statute itself, sections 4343, et seq., does not purport to cover cases of purely equitable cognizance. The statute would seem to authorize a redemption in a case where the cestui que trust buys in the property, without a showing of any special equities. This was not meant to preclude a person having special and peculiar equities from urging his rights in a proper court, although the purchaser chanced to be the cestui que trust. That the statute is merely cumulative in such case is recognized in Vanmeter v. Darrah, 115 Mo. l. c. 158, wherein was said: “Doubtless a court of equity would grant relief outside of the statute against any fraudulent advantage that may have been taken against a party while laboring under such disability, but no such case was made by the pleadings or evidence.” ■

Here we have a case where there was a legal tender of interest and accrued costs. A sale thereafter was void. The statute is not the exclusive method of reaching such case. In such case there is such oppression as will bespeak the interference of a court of conscience.

V. There is some question as to the matter of laches in this case. Plaintiff’s action, although brought within the statutory period, was not brought at once. There is evidence that the possession taken by the defendant was in open opposition to the wishes of the plaintiff. • The court, -nisi, had the witnesses before it. In such case the doctrine has been properly announced in 18 Am. & Eng. Ency. Law (2 Ed.), 105, wherein it is said: “So the doctrine of laches does not apply where the defendant has acted in open and known hostility to the complainant’s rights and has been misled by no apparent acquiescence on the complainant’s part. In such case no consideration of good faith requires that the plaintiff should open the legal warfare at the very earliest opportunity. When a hostile attitude is thus taken, the challenged party may justly be expected, and reasonably be allowed, to be wary and deliberate in choosing his time and opportunity for attack. The law does not demand the utmost exertion of diligence in repelling a hostile invasion of one’s rights deliberately undertaken with full knowledge of all the facts. ’ ’

The evidence in this case was to the effect that, after the sale, the plaintiff told defendant to stay ont. That after the sale the following occurred: “I went there to haul off some posts; he come down and tried to stop me. I knocked him down and got the posts and went away peacefully.” Such evidence does not tend to show laches, or consent to possession. Such evidence shows a positive adverse claim, and with this evidence the court was authorized in so finding. We conclude that the court was authorized in finding that there was no laches.

YI. The only serious question urged is as to the action of the court in determining the amount which should be paid upon an order permitting plaintiff to redeem. Plaintiff had pleaded all the facts. The evidence as to what the parties did after this sale was before the court. The rents and profits was a subject-matter of evidence, as was the debt and the accrued and accruing interest upon both deeds of trust. Defendant was owner of both' and they were properly considered in this action to redeem from a sale under the junior deed of trust; also taxes which had been paid. Upon the facts disclosed by the evidence upon these points the trial court could and did exercise its reasonable judicial discretion. After hearing all the evidence the court fixed the amount due and as to this finding we should not interfere unless warranted by the evidence. We are not prepared to say that the finding is not supported by the evidence in the case, and under such circumstances the judgment of the chancellor, nisi, should not be disturbed. It must be borne in mind that the defendant received the rents and accrued profits, upon which the evidence is somewhat varied. If interest is allowed for the full time, the rents and profits should be deducted. There was also evidence upon the question of improvements as well as taxes paid.

Other questions, to our mind foreign to the subject, are urged, hut these are the material ones.

With the views we have the judgment should be and is affirmed.

All concur.