author: FERRISS, P. J.

text:
    THE STATE v. GENERAL SWAIN, Appellant.
    Division Two,
    February 6, 1912.
    1. RAPE; Sufficient Evidence. If the story of the prosecuting witness, aged twelve years, shows defendant’s guilt of rape, and her testimony is corroborated by several other witnesses, the evidence is sufficient to sustain a verdict of guilty.
    2. -: Weight of Testimony: Improbable Story: Province of Jury. The court will not substitute its judgment on questions of fact for that of the jury. If it was argued to the jury that the story of the little girl, whom defendant is charged with having raped, was inherently impossible and the jury found defendant guilty, the court will not undertake to hold that her story was inherently impossible, or to pass upon other matters going to the weight of the testimony. It is peculiarly the province of the jury to decide upon the weight of testimony.
    3. -: Penetration: Sufficiency of Evidence. Testimony of the twelve year old girl that defendant’s attempt at copulation hurt her and that a towel was used, and testimony of her mother of subsequent internal pain and soreness, though not strong evidence of penetration, are sufficient to take the rape case to, the jury.
    4. -: Instruction: Limitation. The instructions should fix no limit as to the time within which the jury should find the offense of rape was committed. Section 4944, Revised Statutes 1909, in effect provides that there shall be no limitation on the crime of rape.
    5. WITNESSES: Failure of State to Call. The State is not required to call witnesses merely for the purpose of corroboration. The fact that the State failed to call certain physicians who had examined prosecutrix after her alleged rape by defendant, and who had been summoned and were in court, is no ground for a reversal. Nor is the objection for review on appeal where no request was made of the court to order the State to produce these witnesses, and no exception was saved, and the question was not saved in the motion for a new trial.
    6. ARGUMENT TO JURY: Improper Remarks. The prosecuting attorney said in his argument to the jury in a prosecution of defendant for raping a negro girl twelve years old: “And I say to you, gentlemen of the jury, if you make an example of this defendant, if you believe he is guilty, it will tend to the protection of little colored girls and little white girls under the age of fourteen.” Held, that the appeal, coupled with a proviso that defendant was guilty, was evidently directed to the amount of punishment to be inflicted, and'was not improper.
    Appeal from St. Louis City Circuit Court.— Hon George C. Hitchcock, Judge.
    Affirmed.

      Henry M. Walsh for appellant.
    (1) The remarks of the State’s attorney were calculated to create such a prejudice as to jeopardize the defendant’s case. State v. Fairlamb, 121 Mo. 137; Brow v. State, 103 Ind. 133; Heller v. People, 22 Colo. 11; Ranken v. Commonwealth, Q- Ky. L. Rep. 407; Laubach v. State, 44 Tex, 64; Bryson v. State, 20 Tex. App.-566; Newton v. State, 21’ Fla. 53; State v. Upton, 130' Mo. App. 316; State v. Baker, 209 Mo. 444. (2) It was not correct practice to compel the defendant, instead of the prosecution, to call the witnesses. People v. Smith, 99 N. Y. Snpp.. 118; Banker v. People, 37 Mich. 4; Weller v. People, 30 Mich. 22; Thomas v. People, 39 Mich. 309; People v. Etten, 81 Mich. 570; People v. Deitz, 86 Mich. 419. (3) There was no corroboration; the best available evidence, that of the physicians who examined the prosecutrix, not being presented. State v. Patrick, 107 M. 168; Matthews v. State, 19 Neb. 330. (4) The court erred in instructing that if the jury believed that at any time before the filing of the information herein, the defendant did unlawfully and feloniously and carnally know Clara Jefferson. This was error.

      Elliott W. Major, Attorney-General, and Chcvrles G. Rev elle, Assistant Attorney-General, for the State.
    (1) Appellant states that the court erred in instructing that, if the jury'believe that, at any time before the filing of the information herein, the defendant did unlawfully, feloniously and carnally know Clara Jefferson, etc. This complaint is not sound because there is no limitation on the crime of rape, it being a capital offense punishable by death. Sec. 4944, R. S-1909. (2) A further contention of appellant is that the State failed to produce witnesses at the trial whom it had subpoenaed. This ground is really aimed at a suppression of evidence by management. The rule has never extended, and the cases cited by appellant do not recite that all of the witnesses to a transaction must necessarily be called by the prosecution. The justice of requiring them all to be called must depend upon circumstances. The decisions in the cases cited in appellant’s brief, are to the effect that appellant must save the error by exception, and that the complaint is to the action of the court, and not to the action of the State’s attorney, who tried the case. Aj> pellant saved no exception to the action of the court, in this case, in refusing to compel the State to use all of its witnesses subpoenaed, or indorsed upon the back of the information. In fact, no request was made during the trial, nor in appellant’s motion for new trial. Therefore, no exception being saved to the action of the court in that behalf, the same is not here for review. (3) Appellant complains in Ms brief that the prosecutrix was not corroborated. The evidence for the State was corroborated by facts and circumstances, and. also by the two witnesses, Alma Hubbard and Louis Gordon, who were in an adjoining room and heard the conversation and noise. Furthermore, the Patrick case cited by appellant, decided by this court in 1891, was overruled in 1897. State v. Marks, 140 Mo. 656'. The doctrine announced in the Marks case base been followed in the eases of State v. Boyd, 178 Mo. 19*; State v. Day, 188 Mo. 364; Champagne v. Harney, 189 Mo. 727; State v. Welch, 191 Mo. 186. This court has uniformly held in a long line of decisions that, where there is substantial evidence to support the verdict, thb appellate court should not undertake to retry the case upon the evidence as disclosed by the record. State v. George, 214 Mo. 271. The statements of the prosecutrix are strongly corroborated by the testimony of four witnesses. In fact it is seldom that a record reaches this court, involving a charge of tMs nature, where there is as much evidence showing the guilt of the accused. The complaint made by appellant is not that there was not sufficient evidence offered to establish against Mm a case, but is that the State could have called other witnesses and offered additional evidence tending to more strongly show Ms guilt. Since it is only required that substantial evidence of gMlt be offered, and it is only in such cases where there is no such evidence that this court interferes with a verdict, we respectfully ask that the judgment be affirmed.
   FERRISS, P. J.

— Defendant was convicted in the circuit court of the city of St. Louis of the crime of rape upon one Clara Jefferson, twelve years old, and sentenced to eleven years in the penitentiary.

The testimony for the State tended to show that the prosecutrix lived with her parents at their home, located within three or four houses of defendant’s saloon. On the afternoon of December 1, 1909, she visited at the home of a girl friend until about six o ’clock. On her way home, she saw defendant standing in the side door of his saloon, which opened into a hallway and stall's leading to the second story where defendant had rooms and made his residence. He addressed her as she was passing by, asking if she wanted a fairy story book, to which she replied in the affirmative. He then told her to follow him upstairs to his room, which she did. Both having entered the room, he locked the door, told her he had no picture book but wanted to have sexual intercourse with her. She demanded that he let her out of the room, which he refused to do, and took off his coat and vest and directed her to remove certain parts of her clothing. This she refused to do, again asked him to let her out of the room, and made an effort to open the door. After telling her that it was useless to push or attempt to open the door, he removed certain parts of her clothing, placed her on the bed and had sexual intercourse with her. He then unlocked the door and went into the hall, leaving the girl in the room. A man and woman in an adjoining room overheard the conversation and were aware of what took place. The man informed the mother of the girl, and she, in company with a friend, went up> to said hallway, and found defendant there. She asked him if her daughter was in his room, and he replied she was not. In compliance with her request to show her through the house he took her into the kitchen and another room, but refused to let her into the front room, in Avhieh the girl then was, giving as his reason for such refusal that the room was rented to another person, and he had no key. The door to the room was locked-, and she stated that she would get an officer and forcibly enter the room. She then left the building, whereupon the defendant unlocked the door of the room, and told the prosecutrix to run away and never return home, as if she did, her parents would kill her. The girl left the room, went clown stairs, and ran in a direction away from her home. Her mother and another woman saw her leave the place and run ¿long the street. She went to the home of a cousin, where she remained all night. After returning to her home and informing her mother of all that occurred, an examination of her person was made which showed some soreness.

Defendant denied having had intercourse with the prosecutrix, and endeavored to show that this prosecution was inspired by animus growing out of a prosecution instituted at his instance against a certain woman alleged to have been illicitly cohabiting- with a brother of the prosecutrix. One .of the defendant’s witnesses, by name Ethel Washington, testified that she had possession of the front rooni in Swain’s apartments on December 1st, from seven o’clock in the morning' until nine o’clock in the evening’, and that she neither heard nor saw anything corroborating the State’s testimony. Several witnesses were examined upon various details for and against the defendant.

I. The evidence is sufficient to sustain the verdict. The story of the prosecuting witness is corroborated by several witnesses.

It is urged that the story of the girl is inheréntly improbable. This and other objections going to the weight of the testimony were argued to the jury, and they were matters peculiarly within the province of the jury to decide. We may not substitute our judgment on questions of fact for that of the jury.

II. The proof of penetration is not strong, but it is sufficient to take the case to the jury. The evidence as to its hurting* her, the use of the towel, the subsequent internal pain and the soreness testified to by the mother, point clearly to the conclusion that there was some penetration.

III. The only objection to the correctness of the instructions given is that no time limit was fixed within which the jury should find the offense. The instructions were proper under section 4944, Revised ■Statutes 1909, which provides in effect that there should be no limitation on the crime of rape. •

IV. The instructions fully and fairly cover the case. The defendant attempted to get before the jury a theory that this prosecution was inspired by a woman whom the defendant had charged with stealing-money, and suggested an instruction on this point. Obviously, no such instruction would have been proper. There was no evidence in the case to justify it.

V. Objection is made that the State failed to call to the witness stand certain physicians who had examined the prosecutrix after the alleged rape, and who had been summoned as witnesses. No request was made of the court to order the State to produce these witnesses, and there was, of course, no exception saved. Nor is the. question saved in the motion for new trial, and therefore, defendant is not in position to urge the point here. But if the question were properly raised, it would be without merit. The State is not required to call witnesses merely for the purpose of corroboration. The witnesses were in court, and could have been called by defendant. His counsel argued to the jury that the failure of the State to call these doctors indicated that their evidence would have been unfavorable to the State, and yet he did not call them. Defendant cites People v. Smith, 99 N. Y. Supp. 118; Banker v. People, 37 Mich. 4; Wellar v. People, 30 Mich. 16, hut those cases do not sustain his contention.

VI. It is further complained that the court permitted improper remarks by the prosecutor in his closing address to the jury. Here is what occurred:

“And I say to you, gentlemen' of the jury, if you make an example of this defendant, if you believe he is guilty, it will tend to protection of little colored girls and little white girls under the age of fourteen.
“Mr. Walsh: I object to that. You may enforce a law, but nothing more.
“The Court: Of course, he has got a right—
“Mr. Walsh: To say that it will save or protect little colored girls and little white girls?
“The Court: Yes.
“Mr. Walsh: He has said it wrongly, and with a wrongful intent, to try and inject something into this case that is not in it. White women are not a part of this case.
“The Court: Objection overruled.”

It will be observed that the appeal of the prosecutor complained of was coupled with the proviso that the jury should find him guilty. It was evidently directed to the question of the degree of punishment to be inflicted. We may assume that all the parties involved in this case are negroes. Yet we are unable to perceive any serious impropriety in the remark objected to, and there is no ground for believing that it either did. or could influence the jury improperly.

VII. Complaint is made in the motion for a new trial that illegal evidence was admitted for the State. Nothing is said on this point in the brief for defendant, and we have been unable to find any substantial error in the record in this regard.

The case was fairly tried, and the judgment must be affirmed. It is -so ordered.

Kennish and Brown, JJ., concur.


source: Caselaw Access Project

author: Scott, Judge, LEONARD, Judge.

license: Public Domain

text:
    L’Hussier, Defendant in Error, v. Zallee, Plaintiff in Error.
    1. A., having leased certain premises to B., leased the same to C., and upon the termination of B.’s lease demanded possession thereof, which being refused, he brought an action of unlawful detainer against B.; held, it not appearing that C. had made his election to sue his landlord, A., for the nondelivery of the premises leased, or to bring ejectment against B., the first lessee, that an action for unlawful detainer would not lie. (Leonard, J., dissenting.)

      Error' to St, Louis Land Court.

    This was an action of unlawful detainer, originally commen» ced before a justice of the peace. The justice having dismissed the complaint, an appeal was taken to the Land Court. The cause was tried by the court sitting as a jury. The court found for plaintiff. Defendant moved in arrest of judgment for the insufficiency of the complaint or petition. This motion having been overruled, the cause was brought to this court by writ of error. The facts, as they are set forth in the petition, are as follows : L’Hussier leased to Zallée certain premises, being the third story of a house in the city of St. Louis, for three years. There was, however, a clause in the lease to the effect, that, if at any time before the expiration of the said term, L’Hussier should find it proper to lease or rent the whole of his house, then the lease to Zallée should become void, and he, Zallée, should vacate the premises. L’Hussier did lease the whole house to one Guirard, and afterwards notified Zallée of this lease to Guirard, and demanded possession of the premises ; and upon the refusal of Zallée to deliver possession of the premises, brought this action of unlawful detainer.

      Primm & Romyn, for plaintiff in error.
    I. Under the provisions of the law concerning forcible entry and detainer, no one, save the person having the legal right to the possession in question, his agent or attorney, could lawfully demand of him the deliverance of the possession. L’Hussier, having leased to Zalleé, had divested himself of all legal right to the possession. Guirard was the only person who could dispossess Zalleé, and he only by ejectment.

      Hart & Jecho, for defendant in error.
   Scott, Judge,

delivered the opinion of the court.

This judgment will be reversed. The plaintiff, by his complaint, shows that he has no right of action. He had conveyed all his interest. The right to sue for the recovery of the possession of the premises was in the plaintiff’s alienee. Upon the conveyance to him, he had his option, either to bring ejectment against Zallée, or to sue L’Hussier for damages resulting from his breach of contract in not putting him in possession of the premises conveyed. Until the alienee of the plaintiff had made his election, the plaintiff could not move in the matter. If the alienee had sued the plaintiff for breach of covenant in not delivering him possession, then the plaintiff, upon showing tbis fact, would have been entitled to recover possession from the defendant, because the alienee would then have made his election, and shown that he claimed damages and not the premises sold to him. As the case now stands, it does not appear but that the alienee still claims the possession of the lot under his conveyance. If he does, what right has L’Hussier to sue for it. (Trull v. Granger, 4 Selden, 116; Coe v. Clay, 5 Bing. 440; Taylor on Land, and Ten. § 177.)

The facts, as disclosed in the complaint, show that the alienee of the plaintiff, according to repeated decisions of this court, would not be entitled to the remedy pursued in this case.

Judge Ryland concurring,

the judgment will be reversed.

LEONARD, Judge.

Although the second lessee was entitled to the possession of the land on the delivery of the lease, and could therefore have sued the present defendant to obtain it, yet he was not bound to do so, but was at liberty to sue his landlord for the non-delivery of it. (Coe v. Clay, 5 Bing. 440; Trull v. Granger, 4 Selden, 118.) He bought the possession of the land for the time the lease was to run, and not a law suit, and, if this be so, we can not deny the landlord a remedy to recover the possession himself; and if he-be entitled to the possession from the first tenant, the remedy is by unlawful detainer appropriate to his case. I can see no reason why we should allow the tenant to defend his unlawful detainer of the land against his own agreement to restore it in the event that has occurred, on the ground that a subsequent lessee of the same landlord is also entitled to the possession. It is enough for him that he is bound by his own express agreement to restore the possession to his own landlord, and, if he do so, he will not be required to restore it to the second lessee.

The judgment, I think, is right, and, in my opinion, ought to be affirmed.


author: RylaND, Judge,

text:
    Farrar, et al., Appellants, v. Dean, Respondent.
    1. The real estate of an alien escheats to the state at his death.
    2. A sale of real estate belonging to an intestate’s estate for the purpose merely of paying the costs of administration, no debts appearing ever to have been due from the intestate, is invalid, though approved by the Probate Court.

      'Appeal from, St. Louis Land Court.

      F. Ji. Dick, for appellants.

      B. .A, Hill and IV. Preston, for respondent.
   RylaND, Judge,

delivered tbe opinion of the court.

This is an action in the nature of a suit in ejectment brought by plaintiffs, as trustees for Martha J. Sweringen, to recover possession of a lot in the city of St. Louis. The lot was sold by the public administrator of St. Louis county as property belonging to the estate of Christopher P. Schewe, deceased, and the plaintiffs derive their title under the purchaser of the estate at the sale.

It seems from the record that the lot was deeded to Schewe by "Wm. Chambers, Wm. Christy and Thomas Wright, in 1817 ; that letters of administration were taken out on the estate of Schewe in June, 1850, and the sale was made, and in December, 1851, was approved ; that Salisbury became the purchaser at the administrator’s sale, and that he afterwards deeded the lot in controversy to Parrar and Sweringen, the plaintiffs, as trustees for Mrs. Sweringen. It appears that Schewe was a foreigner, a German, by birth, and was in 1817 a very old man ; that shortly after the winter of 1819 he (Schewe) left St. Louis for Florida, as was said, and that he has never been heard of since. There was no personal estate — no other property of Schewe than the lot — and there were no debts due by the estate or to the estate. The administration created the debts by making costs. There were none before it commenced. The order of sale was made to pay. the costs that had accrued in taking out administration, and investigating the title, and paying taxes on it, after the administration commenced. No inquest was ever taken declaring the said Schewe an alien. The defendant claimed the land by conveyance from Wm. Christy, her father ; and set up the defence of adverse possession for twenty years before the commencement of suit. There was a trial by jury and verdict for defendant. The plaintiffs bring the case here by appeal, and they complain of improper instructions given by the court to the jury.

We do not consider it a matter of much importance as to the instructions given — whether they were correct or not; as the judgment below must be affirmed on other grounds, which entirely destroy the plaintiffs’ right to recover. The legal presumption of Schewe’s death commences sometime in 1827 or 1828. At his death, he being a foreigner, his lot would instantly and of necessity, (as the freehold can not be kept in abeyance,) without any inquest of office, escheat and vest in the state, because he is incompetent to transmit by hereditary descent. (2 Kent’s Com. 54.) Chancellor Kent says : “ Though an alien may purchase land, or take it by devise, yet he is exposed to the danger of being divested of the fee, and of having his lands forfeited to the state, upon an inquest of office found ; and if he does, before any such proceeding be had, we have seen that the inheritance can not descend, but escheats of course.” (2 Kent’s Com. 61.) Our act of 6th December, 1820, permitted resident aliens in any of the United States or territories, who shall have made a declaration of their intention of becoming citizens of the United States by taking the necessary oath in due form of law, to inherit, and to transmit the inheritance of real estate within this state, and to acquire and hold the same by descent or purchase, and to alienate the same, and to have the same rights and incur the like duties, in relation thereto, as if they were citizens of the United States. The intention to become citizens and the preparatory oath are necessary to this privilege. Here is an old man — a foreigner ; there is no evidence of any declaration on bis part of an intention to become a citizen of tbe United States, nor of any oath to that effect taken. This presents a serious objection to the plaintiffs’ recovery here. But this is not the most fatal one; nor do I rely alone on this. There is an obstacle in the way of the plaintiffs’ recovery, in this case, upon the title exhibited by them, insurmountable, in my opinion.

The administrator has no power over the real estate, except so far as to hold it for the payment of the debts of the deceased ; and when there are no debts, the land descends to the heirs, or escheats to the state ; and it is not in the power of the administrator to hinder this legally; nor can the Probate Court direct or order a sale of real estate for costs accrued after the administration begins, and only because it did begin. Such costs are not debts due by the deceased, nor debts at the time of the death of the intestate.

Here, a man is unheard of for thirty years — was an old man when he left — -no debts left behind him — no debts ever brought forward or heard of as due and owing by him — no proceeding by attaching creditors to reach his property. Thirty years pass away; a new generation has come forward, and, by its sharp-sighted, keen, penetrating benevolence, undertakes to take up and manage the estate of him, who has probably ceased to think about it for a quarter of a century. There is no case for an administration, and the public administrator should have scouted the idea of interfering with it.

“Where there are not sufficient personal estate and effects charged with the payment of the debts of any testator or intestate, it shall be the duty of the executor or administrator to make application to the court of probate of the proper county in which his letters were granted, by petition, setting forth the facts, and praying that an order or decree may be made for the sale of any real estate of the testator or intestate, the sale of which is not provided for by his will, or so much thereof as Shall be necessary for the payment of the debts of the deceased,” &c. (R. C. 1825, p. 106.) “ If any person die and not leave personal estate sufficient to pay his debts, tbe executor or administrator shall file a petition to the county court stating the facts, and praying for the sale of such estate or so much thereof as will pay the debts.” {R. C. 1885, p. 52.) The provision of the code of 1845 is the same except that the word “ leave” .is changed to have.” If any person die and not have personal estate sufficient to pay his debts,” &c. (R. 0. 1845, p. 84.) Now no person can read these provisions of our administration law without being satisfied with the object of our legislation upon this subject. It was to prevent persons from placing their real estate out of the reach of creditors by will, and to save it also for the heirs when not necessary for the creditors. It might be sold under certain proceedings when necessary to pay the debts of the deceased — when a person shall die and not leave personal estate sufficient to pay his debts. If is, beyond doubt, that the debts, to be paid by a sale of the real estate of a deceased person, were debts and liabilities of that person only. — debts due or to become due by him. No one ever imagined that the legislature designed to place the power in the hands of the administrator to create the debt, and then to sell the real estate of the decedent to pay for it. When there are no debts, there is no law to sell the real estate. The administrator can not procure, in such a case, an order for its sale without a violation of law.

From the record of the Probate Court, used in this case, it is manifest that there were no debts. Schewe has not been seen or heard of here for thirty years; his lot, in this case, was sold to pay the costs of administration. We can not shut our eyes to the fact that the administration was begun for the purpose of selling the lot; not for the purpose of paying his debts, for there were none; not to save his estate for his heirs, for there were none ; but to get hold of his real estate by means seemingly consistent with law ; and therefore the administration began. It made eosts, and then sold the property, the lot, to pay them ! Now, where the proceedings of the probate courts, in decreeing the sales of real estate, are substantially correct — where there were debts to be paid, and sales necessary to their payment, we will not lend a scrutinizing eye to find defects in such proceedings ; yet, when we see that the law has not been complied with in a material point, and it appears affirmatively, so that there is no room to presume a compliance with its provisions, we must hold such sales invalid. (Valle v. Flemming. 19 Mo. 454; 16 Mo. 9.)

I presume that this is the first case where, under our law, real estate has ever been sold for the costs of administration— where there were no debts outstanding against the estate, and the administration was taken out for the purpose of reaching and selling such real estate ; for, unless this was the object in this administration, there is none other that we can perceive. It is the duty of the courts, then, to put a check to this matter when first brought to their notice. Therefore, without considering the instructions given by the court below, we shall affirm the judgment;

Judge Scott concurring in this judgment.


author: LEONARD, Judge,

text:
    Lockwood et al., Appellants, v. City of St. Louis et al., Respondents.
    1. Although the courts will not interfere by injunction to restrain the sale of personal property levied upon and advertised to be sold for the payment of taxes illegally assessed; yet, it seems, they will.so interfere where it is sought to enjoin the sale of real property. (Deane v. Todd, 22 Mo. 91, explained.)
    2. Church property in the city of St. Louis was liable, under the sewerage act of March 12, 1949, (Sess. Acts, 1849, p. 519,) to he assessed for the construction of sewers.

      Appeal from St. Louis Land Court.

    This was a petition for an injunction to restrain the sale by the city of St. Louis of St. George’s church. The plaintiffs are the trustees of St. George’s church. They allege in their petition that a special tax for the year 1854, amounting to $>139 25, was assessed upon St. George’s church for the construction of a sewer in the district in which said church is situated ; that the said church had been advertised for sale for the payment of said tax by the City of St. Louis, by her comptroller, H. Overstoltz. Plaintiffs prayed for an order enjoining the sale; also that the assessment be declared illegal and void ; also that the city be enjoined against further assessing or levying any tax against said church property for the construction of said sewer.
    A restraining order was granted. The petition was demurred to, and, the demurrer having been sustained, the injunction was dissolved. Plaintiffs appealed to this court.

      J. Jl. Kasson, for appellants.

      T. T. Gantt and W. L. Williams, for respondents.
   LEONARD, Judge,

delivered the opinion of the court.

1. This court has allowed relief by injunction in several cases where real property was about to be sold for the nonpayment of taxes assessed by a municipal corporation, but has never allowed it, that I am aware of, to prevent a sale of personal property. The distinction is obvious enough. In one case, a cloud is about to be drawn over a land title, and the court interferes to prevent it; in the other, the legal remedy is full and ample, and no reason exists for the interposition of equity. The present case falls within the previous decisions of this court; but in Deane v. Todd, (22 Mo. 91,) to which we have been referred, the sale sought to be enjoined was of personal property ; and, although the judgment there certainly did not extend the doctrine of this court, as to the relief by injunction, to sales of personal property, it did not disturb the adjudications already made in reference to sales of real property ; no matter what the judges, who concurred in that opinion, may have thought of those decisions as an original question.


author: Scott, Judge.

text:
    Lala, Respondent, v. Canal-boat City of Joliet, Appellant.
    1. The Law Commissioner’s Court of St. Louis county can not, in case of an appeal from a justice of the peace, where the justice fails to deliver a transcript, &c., affirm the judgment appealed from, upon the filing of a transcript hy the appellee and a motion made hy him for its affirmance. (Grassmuck v. Atwell, 23 Mo, 63, affirmed.)

      Appeal from St. Louis Law Commissioner’s Court.

      M. L. Gray, for appellant.

      A. W. Lewis, for respondent.
   Scott, Judge.

This case is in all respects like that of Grassmuck v. Atwell. (23 Mo. 63.) The judgment will be reversed and the cause remanded. The other judges concur.


text:
    Haist, Respondent, v. Canal-boat City of Joliet, Appellant.
    1. Grassmuck v. Atwell, (23 Mo. 63,) affirmed.

      Appeal from St. Louis Law Commissioner’s Court.

      M. L. Gray, for appellant.

      A. W. Lewis, for respondent.
   Scott, Judge.

This case is in all respects like that of Grassmuck v. Atwell. (23 Mo. 63.) The judgment will be reversed, and the cause remanded.


text:
    Kingsland, et al., Respondents, v. Clark et al., Appellants.
    1. The condemnation and appropriation to public uses of a portion of leased premises will extinguish a proportionate part of the rent; and this proportionate part may be ascertained and fixed in an equitable proceeding instituted for that purpose by the tenant.

      Appeal from St. Louis Land Court.

    The facts sufficiently appear in the opinion of the court.

      W. L. Williams, for appellant.
    I. The condemnation and the appropriation by the city to public use of fifty feet of the leased premises do not affect the contract for rent between tbe landlord and tenant. (8 Kent’s Com. 464 to 470, 2d ed. ; 15 Wend. 404 ; 24 do. 254 ; 7 do. 21; 11 Ohio, 408 ; 15 Mo. 467 ; 15 Pick. 198.)

      C. D, Drake, for respondent.
    I. The title to rent is founded upon the presumption that the tenant enjoys the land during the contract. If he be deprived of the land, the obligation to pay rent ceases, because such obligation has its force only from its consideration, which is the enjoyment of the land.
    II. If, therefore, the tenant be evicted from the premises by authority of law, the obligation to pay rent ceases; and if evicted from a part of the premises, the obligation ceases pro tanto, and the rent will be apportioned. (Gilbert on Rents, 145, 146 ; Bacon’s Abr. Rent M. 2; 3 Kent, 464 ; Lansing v. Yan Alstyne, 2 Wend. 561 ; Vaston v. Jones, 2 Iredell Eq. R. 350.)
    III. It is competent for a tenant to show, as a defence against the payment of rent, that the relation of landlord and tenant no longer exists. (Lawrence v. Meller, 1 Sandford, S. C. 516, 550 ; Jackson v. Rowland, 6 Wend. 666, 670; Bowser v. Bowser, 8 Humph. 23.) The relation of landlord and tenant ceased in this case by the condemnation of the property of both parties to public use. (Eoote v. Cincinnati, 11 Ohio, 408 ; David v. Beelman, 5 La. Annual 545 ; Cathbert v. Keehn, 3 Wharton, 357.)
   LEONARD, Judge,

delivered the opinion of the court.

The principles that constitute this case have been settled at the present term in Biddle v. Hussman. (See 23 Mo. 597.) The condemnation of part of the leased premises extinguished a rateable proportion of the rent; and in that case this was relied upon as a defence by the tenant in an action against him for the whole rent. In the present case, the same matter is set up as the ground of a proceeding in equity to have the proportion due for the residue of-the lot ascertained and settled once for all, which we think is a proper proceeding, in order to avoid a multiplicity of suits.

The trial was upon the petition and answer, without proof on either side, and at first we had some doubt whether the admissions of the answer were sufficient to show that the full rent had been paid up to the time of the condemnation. But, upon further examination, we find that, although there is a general denial of the fact, yet the specific allegations of the petition, as to the time of the condemnation, and that the rent had been paid up to a subsequent period, are admitted ; and, taking the answer most strongly against the defendant, we must consider the admission as sufficient. The judgment is affirmed.


author: LEONARD, Judge.

text:
    Boernstein, Respondent, v. Heinrichs, Appellant.
    1. Where a cause is set for trial, and the defendant by agreement of plaintiff is allowed until the day of trial to file his answer ; held, that it is not erroneous to refuse to set aside a judgment by default against him for want of an answer, where the reason urged for setting aside the same is, that the defendant and his counsel were, during the day on which the case was set for trial, in attendance in another court, the one as witness, the other as counsel, in a cause there on trial.

      •Appeal from St. Louis Law Commissioner’s Court.

    Kribben, for appellant.

      S. H. Gardner, for respondent.
   LEONARD, Judge.

The judgment is affirmed. The affidavit made out no sufficient excuse for his default, and the facts stated in the petition constitute a good cause of action against the defendant.


author: Leonard, Judge.

text:
    Boernstein, Respondent, v. Heinrichs, Appellant.
    1. Where a cause by consent of parties is set for trial on a particular day in the return term, and the same is tried in the absence of the defendant and a judgment rendered against him; held, that he is precluded from insisting, in support of a motion to set aside the judgment rendered, that the cause was not triable of right at the return term.

      dip peal from St. Louis Law Commissioner’s Court.

      Kribben, for appellant.

      S. H. Gardner, for respondent.
   Leonard, Judge.

The case seems to have been set for'trial by consent on a particular day in tbe return term, and was on that day postponed by like consent to a subsequent day in the same term. And the defendant, after a trial in his absence at the time agreed upon, can not withdraw his consent by subsequently insisting that the cause was not triable of right at that term. He has concluded himself by his own act, even if he were in time with his motion. The judgment is affirmed.


author: Rtland, Judge,

text:
    Carson et al., Respondents, v. Steamboat Elephant, Appellant.
    1. Where a steamboat has been seized under the act concerning boats and vessels, (It. C. 1845, p. 180,) and, upon the execution of a bond under the ninth section of said act with approved security, is discharged from further detention, the boat is entirely discharged from the lienafter such discharge of the boat, and after proceedings have been commenced in another court to enforce liens against the boat, the lien can not be revived by obtaining an order for further security, and to retake the boat until further security be given, and by the court’s rescinding its approval of the bond 5 the demand would not in such case become entitled to be allowed and classed as a lien against the boat in such other proceedings.

      Appeal from, Si. Louis Court of Common Pleas.

    The facts sufficiently appear in the opinion of the court.

      Hart & Jecho, for appellant.

      J. H. Rankin, for respondents.
   Rtland, Judge,

delivered the opinion of the court.

The plaintiffs filed their petition in the Circuit Court of St. Louis county in May, 1855, against the steamer Elephant, for stores and provisions furnished by them to said boat, and for which they had a lien on said boat under the act of 1845, concerning boats and vessels. The boat was seized by the sheriff, and on the same day the master executed his bond to the plaintiffs with security, which was approved by the judge of the Circuit Court, and the boat was discharged from any further detention. The filing of the petition, issuing the writ, seizing the boat, and executing the bond to the plaintiffs, were all done on the 14th of May, 1855. The boat was discharged on the same day. The boat was afterwards seized by virtue of process from the Court of Common Pleas at the suits of divers creditors, upon claims that were liens against the boat. No bond being executed on the part of the boat within the time prescribed, an order was made directing the sale of the boat. After the boat had been seized on the process from .the Court of Common Pleas, the plaintiffs caused notice to be served on the master of the boat, that they would move the Circuit Court on the 18th day of June, 1855, to compel the boat to give additional bond and security. On the 18th day of June, 1855, the court made an order requiring additional bond with security to be given within two days from the date, and ordered the sheriff to retake said boat, and hold the possession until said bond be given. On the 30th June, 1855, the Circuit Court, on motion of the plaintiffs, rescinded the approval of the bond, filed on the 14th May previously, upon which the boat had been released. After the sale of the boat, the plaintiffs presented their claim, with a copy of the proceedings thereon before the Circuit Court, to the Court of Common Pleas, to be allowed and classed among the liens against the proceeds of said boat. After hearing the evidence on the same, the defendant moved the court to instruct as follows: “If suit was commenced in the Circuit Court May 14th, 1855, on the claim presented for allowance here, and on the 14th May, 1855, the steamboat Elephant was discharged from detention under the bond. filed in that court and offered in evidence here, and if the said boat was subsequently sued on the 11th and 12th of June, 1855, in the Court of Common Pleas, and seized under warrants issued thereon, and, no bond being given, was ordered to be sold by this court on the 18th June last, and was advertised for sale on the 20th of said June, and sold under said order, and pursuant to said advertisement, on the 14th July, then the plaintiffs are not entitled to have the demand allowed in this proceeding, notwithstanding the order of the Circuit Court made on the 13th of June for further security, and to retake the boat until further security be given, and notwithstanding the additional order of said Circuit Court on the 80th June, rescinding its approval of said bondwhich the court refused to do. The defendant excepted. The Court of Common Pleas allowed the plaintiffs5 demand and placed it in the- second class of liens. The defendant brings the case here by appeal.

Whenever, under the act concerning boats and vessels, a boat has been seized, and the master executes to the plaintiff’ a bond with security, and the boat is discharged from further detention, she is also discharged from the lien of the plaintiff’s demand. The words of the act are plain, and their meaning manifest. Upon the giving of the bond, “ the boat or vessel, with its tackle, apparel and furniture, shall be discharged from further detention by the officer having custody thereof, and shall be discharged from, the lien of the plaintiff’s demand.” Upon the bond being given, the boat and lien are both discharged ; the plaintiff must then look to the bond; his claim is no longer a lien on the boat; it is secured, in the eye of the law, by the bond. Now the action of the Circuit Court upon this bond could not revive a lien which had at one time been extinguished by the bond. No matter in what light this bond may be considered by the court, as between the plaintiffs and the defendant, the requiring an additional bond, the order to retake and keep possession of the tract, and the order rescinding the approval of the bond, can not have the effect of reviving the plaintiffs’ lien in this case against the rights of other creditors. Whenever the bond is given, the lien is gone; and this does not depend upon the real sufficiency of the obligors to meet the penalty; it is presumed, with full and adequate authority to test the sufficiency of the bond in the court which is to approve it, that a good bond will generally be offered. The plaintiff can examine the security and principal, and the court must be satisfied. At all events, when the bond is approved, there ends the lien. In the ever-varying affairs of men, an obligor may be to-day entirely able to meet his obligations, and twenty days afterwards totally unable. Shall the discharge of a boat and a lien depend upon such contingencies ?

Had the Circuit Court done nothing further than the approval of the bond, the plaintiffs would never have supposed that they could pursue the proceeds of the boat in the hands of the officers of the law. They would have looked to their bond, and to that alone. Now, in our opinion, all the rulings in the Circuit Court in regard to the bond could not revive the lien of the plaintiffs ; it was extinct. The Court of Common Pleas should have declared the law as asked for in the defendant’s instruction. It was error to allow the plaintiffs’ demand as a lien in the second class, or in any class. It was no longer a lien against the boat. The judgment is therefore reversed ; the other judges concurring.


author: Scott, Judge,

text:
    Vasquez et al., Plaintiffs in Error, v. Ewing, Defendant in Error.
    1. A certificate of confirmation, granted by Recorder Hunt under the act of May 26, 1824, though prima facie evidence of title under the act of Congress of June 13, 1812, as against the government and persons claiming by title subsequent to the said act of June 13,1812, is not sufficient to establish title to land lying within the approved United States survey of St. Louis common as against one claiming title under the city of St. Louis; there must in such case be actual proof of inhabitation, cultivation and possession prior to the 20th of December, 1803.
    2. Where one of several tenants in common is in possession of a tract of land, and a judgment'for the possession of the tract is rendered again st him in behalf of one claiming by title adverse to that of the co-tenants, and a writ for the delivery of possession is issued and placed in the hands of the proper officer ; held, that this amounts to such an ouster as will terminate the •co-tenancy in favor of the plaintiff in the execution, who, without an actual execution of the writ of possession, receives a deed f'om the defendant in the execution; he will not be estopped by accepting such a conveyance to deny the title of the co-tenants of his grantor; nor will the acceptance of such deed be such a recognition of a title, recited therein to have been acquired by the grantor, as will amount to an estoppel.
    3. Whe.re equitable relief is sought, the petition should be framed with a view to such relief.

      Error to St. Louis Land Court.

    This was an action, in tbe nature of an action of ejectment, to recover possession of an undivided interest of thirteen thirtieths of a tract of land in St. Louis county. Plaintiffs claim title as the heirs and legal representatives of Benito Yasquez, to whose legal representatives they allege the said tract of four by eight arpens was confirmed by the act of Congress of June 13, 1812.
    On the trial, plaintiffs introduced in evidence a certified copy of an extract from the list furnished by Recorder Hunt to the office of the surveyor general of Illinois and Missouri, pursuant to the act of Congress of May 26, 1824; which extract with the accompany certificates, is as follows :

    “Recorder’s Office, St. Louis, October 15,1827. I, Theodore Hunt, recorder of land titles in the state of Missouri, do certify the foregoing record, contained in 47 pages, commencing with Louis Lemond and ending with the field lot of Titus Strickland, contains all the village lots, out-lots and common field lots, the boundaries of which have been proven before me under the provisions of an act of Congress approved the 26th May, 1824, entitled ‘ An act supplementary to an act passed on the 18th day of June, 1812, entitled An act making further provision for settling the claims to land in the territory of Missouri.’ Theodore Hunt.”
    “ Office of the Surveyor General of Illinois and Misssouri. St. Louis, 27th March, 1854. The above abstract of a claim in the name of Benito Vasquez’s legal representatives, numbered 658, in red, and the annexed certificate of Theodore Hunt, recorder of land titles, are correctly copied ; the former from page 29, and the latter from pages 48 and 49 of list returned to this office by the said recorder, pursuant to the provision contained in the third section of the act of 26th May, 1824, referred to in the above certificate, which list is on file in this office. From a certain document returned to this office with the letter of the commissioner of the general land office, of the 12th February, 1847, to the surveyor general, it appears that the said number 658 (as above laid down in red) corresponds with the number 655 (in black) on a similar list on file in the said general land office. Jno. Loughborough, surveyor general.”
    Plaintiffs also introduced in evidence a certified copy of United States survey No. 2965. This was a survey for the legal representatives of Benito Vasquez, of a tract of four by eight arpens, and embraced the land in controversy in the present suit; also introduced evidence tending to prove that plaintiffs were heirs and legal representatives of Benito Vasquez ; that one Quinette, holding a portion of the Vasquez title, had been in possession of the said tract; that defendant Ewing, claiming by a'title adverse to that of Vasquez’ representatives, having obtained a judgment against said Quinette for the possession of said tract, and a writ of possession having issued and been plaeed in the hands of the sheriff, said Quinette executed a deed of conveyance of said tract to said Ewing, in which it is recited that the land conveyed is “the same which the said party of the first part acquired of the heirs and legal representatives of Benito Vasquez, by deed bearing date September 3, 1847,” &c.
    It was shown on behalf of defendant, Ewing, that the tract of land in controversy was embraced within the common of St. Louis as surveyed by the United States. It is unnecessary to set forth more fully the facts appearing in evidence. The court, upon motion of defendant, instructed the jury that plaintiffs were not entitled to recover. Exceptions were duly taken. Plaintiffs bring the cause to this court by writ of error.

      F. Ji. Dick, for plaintiffs in error.
    I. The title shown by the plaintiffs on the trial was a confirmation of the 13th June, 1812, founded upon inhabitation and cultivation of the lot in question, as an out-lot, prior to the 20th day of December, 1803, by their ancestor, upon which, as a matter of law, they were entitled to recover. (17 Mo. 322 ; 16 How. 466, 494 ; 15 Mo. 87 ; 9 Mo. 351, 489, 717 ; 19 Mo. 665; 4 Mo. 459 ; 5 Mo. 240; 6 Mo. 474 ; 11 Mo. 184.)
    II. The evidence, relied upon by the defendant of title to the premises in dispute in the inhabitants of the town of St. Louis, as a part of its commons, did not, as a matter of law, show a title equal to and countervailing the plaintiffs1 title. (4 How. 421 ; 18 Mo. 296-7, and authorities above cited.)
    III. The court committed error in declaring, as a matter of law, that the plaintiffs had not proved possession, inhabitation or cultivation of: the premises prior to the 20th December, 1803. The instruction was in effect declaring to the jury that the plaintiffs’ evidence was not entitled to any credit.
    IY. Quinette, having been a tenant in common with the plaintiffs, was in possession of these premises with their permission and approbation, and holding for them as well as himse f. (2 Cruise, 402, sec. 14, 16 ; 3 Cruise, 437 ; 25 Maine, 435 ; 1 Piek. 116 ; 5 Wheat. 116.) The-purchase of his title, and taking Quinette’s possession of the premises upon such purchase by Ewing, put him in the same position, as to the plaintiffs, that Quinette was in, and, under these circumstances, he could not take advantage of the plaintiffs, who were co-tenants with him of the Yasquez title, under which he obtained possession, by choosing to consider himself in possession under an adverse title. (6 Yerm. 395; 3 J.. R. 504 ; 5 Cow. 129, 130; 25 Wend. 389.)
    Y. The purchase by Ewing of Quinette’s interest in this land, and the recitals in the deeds under which Ewing and Quinette held and obtained possession, amount to such a recognition of the Yasquez title as to estop Ewing from denying that there was such a title to this land, as it is set out in his deeds giving possession. (6 Yerm. 395 ; 9 Wend. 209 ; 4 Denio, 485-6 ; 3 J. R. 504, 223 ; 5 Cow. 130, 129 ; 7 J. R. 157.)
    YI. The deed of the city to Lane enured to the joint use of his tenants in common of the Yasquez title, he having an equitable claim upon them for their proportionate part of the compromise money — five dollars per arpent — paid by Lane to the city; and Lane and the defendant, who by the sheriff’s deed is in privity of estate with him, will not be permitted to set the city title up adversely to the other owners. (3 Dana, 324.)
    VII. The defendant can not in the same action claim both against and under the Vasquez title.

      II. S. Geyer, for defendant in error.
    The extract from the list furnished by Recorder Hunt to the surveyor general, and the official survey No. 2865, relied upon by plaintiffs as proof of confirmation by the act of 13tb June, 1812, do not furnish any evidence that the tract of land therein described was, prior to 20th December, 1803, a town lot, out-lot, or common field lot; and therefore neither is even prima facie evidence of a confirmation by the act of June, 1812. To establish a confirmation of a private claim by the first section of the act of 13th June, 1812, there must be proof in some form that the land claimed was a town or village lot, out-lot, or common field lot. (Newman v. Lawless, 6 Mo. 279.) What constitutes such a lot is a question of law to be determined by the court on the facts presented in each case. (Page v. Schei-bel, 11 Mo. 167.) In the cases in which the certificate issued by the recorder or the list furnished by him by authority of the act of 26th May, 1824, has been held to be evidence of a confirmation, it appeared, by the description of the land or other competent evidence, that it was a town or village lot, out-lot or common field lot. (Janis v. Gurno, 4 Mo. 458; Gurno v. Janis, 6 Mo. 330 ; Beechler v. Ooonce, 9 Mo. 447; McGill v. Sunners & McKee, 15 Mo. 80 ; Soulard v. Allen, 18 Mo. 590.) In this case, the land is described both in the certificate and survey as “ a tract of land of four arpens front, eight arpens in depth, near the town of St. Louis a description which is neither of a town lot, out-lot or a common field lot; and as there is no other evidence that it is one of the description of lots confirmed by the act of 1812, the plaintiffs fail in establishing a confirmation by that act.
    The evidence of confirmation, if any, afforded by the list furnished by the recorder to the surveyor, is rebutted in this case by the facts proved and admitted by the plaintiffs. The land in controversy being within the boundaries of the commons confirmed to the inhabitants by the first section of the act of 13th June, 1812, must be regarded primafacie as part of the commons, the title to which vested in the inhabitants of St. Louis at the date of the act, and could not be divested by subsequent act of Congress. The confirmatory act operates as a legislative grant to the inhabitants of St. Louis of all lands within the boundaries of the commons, which was not on the 20th December, 1853, private property; it confirmed no private claims except to town lots, out-lots and common field lots held,as private property prior to 20th December, 1808, and not abandoned. It is an exception out of the grant of commons to be proved by the private claimants. The act of May 26th, 1824, did not authorize the recorder, nor did he assume to decide the judicial question left open by the act of 1812 — namely, whether the land in dispute was or was not a town or village lot, out-lot or common field lot. That remained a matter of law, to be determined by the courts, after as well as before the aet of 1824. The recorder was authorized and directed to receive evidence of the inhabi-tation, cultivation and possession required by the act of 1812, and of the extent and boundaries of each claim; he was required to issue a certificate of confirmation for each claim confirmed ; that is, he was to certify in writing the description of each lot, which, in his opinion, had been proved to have been inhabited, cultivated and possessed prior to the 20th December, 1803, and not abandoned; and such certificate is prima facie evidence of the facts, upon proof of which it was to be issued, and nothing more. At most, the certificate of confirmation, so called, and the list furnished the surveyor under the act of 1824-, is evidence of a confirmation only as against the United States and those claiming under them by title subsequent to the act of 1812 ; but as against a confirmation by the act of 1812 the claimant is bound to prove the facts required by the act precisely as he would have been at any time between the 13th June, 1812, and 26th May, 1824. (Gurno v. Janis, 6 Mo. 330.)
   Scott, Judge,

delivered the opinion of the court.

1. The case of LeBois v. Bramell, (4 How. U. S. 449,) establishes the doctrine that the approved survey of the commons of a village, confirmed by the act of June 13, 1812, is equivalent to a patent. If this is so, then the city of St. Louis had as perfect a title from the general government to her commons as could be obtained. That title being perfect, it could only be surmounted by tbe proof of facts which stowed that she could not have had title. Her title could not be assailed by the government, nor any one claiming subsequently to her confirmation. By the act of 1812, if one could actually show that he inhabited, cultivated or possessed a lot, within its meaning, prior to the 20th December, 1803, within the boundary of the survey of the commons, he would have a better title than the city ; for, being a lot inhabited, cultivated or possessed, it could not have been commons. But the city having a perfect title against the government and against all the world except such a claimant, in order to dispossess her or those claiming under her, the fact of cultivation, inhabitation or possession prior to the 20th December, 1803, must be actually proved. Prima facie evidence of such fact is not -sufficient. The city having a perfect title against all who do not show actual inhab-itation, cultivation or possession, on what principle, in law or reason, can one, who has only prima facie evidence of one of these facts, overthrow her title ? Her perfect title is of no avail, if, when it is attacked, she has to disprove her assailant’s title. As against the perfect title, nothing but an actual showing of the existence of the fact which will overcome it, can be deemed sufficient. The villages, whose commons were confirmed by the act of 1812, were not authorized to prove their claims before the recorder under the act of 1824. How unjust, then, to make the proof taken by an individual claimant of such effect as to throw the burden of disproving it on the villages. If the villages could have proved their claims, then they would have prima facie evidence against prima facie, and, being in possession, they could not be disturbed. By the act of 1812, the title of the villages to commons could only be overcome by actual proof of the inhabitation, cultivation or possession of part of them prior to the 20th December, 1803, by inhabitants of the villages, as a lot, out-lot, or common field lot. If it was competent to Congress to do so, we will not presume that they intended, by the act of 1824, to require evidence less strong than the act of 1812 to overthrow the claims of the villages enumerated in the act to their commons.

We are not aware of any case in which the precise point involved in this controversy has arisen. The doctrine that the certificates and proofs taken before the recorder, under the act of 1824, were ¡¡rima facie, evidence, was not established without a struggle. Taken as it has been received, that the certificates were ¡¡rima facie evidence against the government, there is not much to be said against it. Being evidence against the government, those claiming subsequently to the act of 1812 can not occupy a more advantageous position than the government itself maintained. But we can see no reason, nor perceive any principle, on which a certificate of the recorder should have a prevailing effect, unless disproved, against one claiming under the act of 1812, or any act prior thereto. Indeed, it would be against principle, as it would be assuming that Congress may pass a title, and then, by a subsequent act, require less evidence to defeat that title than was required when it was first conveyed. The certificate would prevail against one claiming under the act of 1812 ? who had none, and who could not prove inhabitation, cultivation or possession before the 20th December, 1803 ; because, in that case, there would on one side be no evidence of any fact which was requisite to confer title by the act of 1812.

2. It is maintained by the plaintiffs that Quinette, having been a tenant in common with them, and having been in possession of the premises in controversy, the defendant Ewing, succeeding to Quinette’s possession by a deed from him, held likewise as a co-tenant, and was estopped from denying the right of his co-tenants, the plaintiffs, to the possession of the disputed lot. The facts preserved in the record do not sustain this point. It appears that Ewing sued Quinette to recover possession of the lot; that he obtained a judgment, and that a writ for the delivery of the possession was in the hands of the officer when Quinette conveyed to Ewing. This we consider such an ouster as terminated tbe co-tenancy. An actual execution of tbe writ was not necessary to effect that object.

It is next insisted that tbe purchase by the defendant Ewing of Quinette’s interest in this land, and tbe recitals in the deeds under which Ewing and Quinette held possession, amounted to such a recognition of the Yasquez title as estops Ewing from denying that there was such a title to this land. Inasmuch as Ewing claims by a distinct title, wholly disconnected with that of Yasquez, we hold that the doctrine of estoppel does not apply. There is nothing in the nature of an estoppel which precludes a party from setting up a title like that interposed by Ewing against the recovery of the plaintiffs. (Landes v. Perkins, 12 Mo. 259; Blight’s Lessee v. Rochester, 7 Wheat. 635.)

3. The. plaintiffs, moreover, contend that the deed of the city to Lane enured to the joint use of himself and his co-tenants, inasmuch as he compromised the Yasquez title with the city, and by means of it obtained the commons’ title from her. Whatever equity there may be in the defendants, growing out of the compromise with the city, about which we express no opinion, it is evident that the petition filed in this cause is not so framed as to obtain any such relief. This action was .brought to try the legal title of the parties; it is in the nature of an ejectment, and the allegations in the bill are only suited to that purpose. If the defendants have any equity, it must be sought in a proceeding so ordered as to show that they are entitled. Surely,- the defendants could not expect that the court would hold that they were legally entitled to the right acquired from the city, when they had neither paid nor offered to pay any portion of the sum by means of which Lane obtained her title.

Judge Ryland concurring,

the judgment will be affirmed.


text:
    Jacob, Respondent, v. McLean, Appellant.

      1. Where a cause is upon the day of trial submitted to the court by plaintiff’s counsel upon proofs presented by him, and the court finding for plaintiff gives judgment accordingly; held, that defendant is not entitled to have this judgment set aside for the reason that his counsel, at the time the case was called and submitted, was absent in attendance as counsel in another cause in another court.
    2. The Supreme Court will not in such case interfere with the discretion of the lower courts.

      Appeal from St. Louis Circuit Court.

    This was a suit brought by an endorsee of a bill of exchange against the acceptor. Defendant, in his answer, set up a want or failure of consideration; also denied the endorsements. When the case was called for trial, the defendant not being present, it was submitted to the court upon proof of the several endorsements, and the court found for plaintiff, and rendered judgment accordingly. Defendant moved to set aside this judgment and accompanied his motion with the following affidavit : “ L. M. Shreve being duly sworn, upon his oath states that he has had sole charge of the defence of this cause; that he pi’epared himself for the trial of this cause, and his testimony was ready ; but at the time when said cause was disposed of by the court, affiant was actually engaged in the cause of the State v. Wm. F. Morgan, and was at the time addressing the jury in the case; that as soon as he closed his argument at eleven o’clock in the morning, he proceeded to this court and found that this case had just been disposed of by default. Affiant states that defendant has good legal and meritorious defence to said action, and he has so advised the defendant, and is willing to pay costs and comply with any terms imposed by this honorable court.”
    The court overruled the motion. Defendant appealed.

      Jl. M. Gardner, for appellant.

      Knox & Kellogg, for respondent.
   Scott, Judge,

delivered the opinion of the court.

If the ground on wbicb this application for a new trial is asked be sustained, it would be almost impossible to do the business of the St. Louis courts. If, because counsel is engaged in one court, the business of another court, where his presence is required, is to be delayed, it is easy to see that no dispatch could be used in the disposition of causes. The courts below, where the business of suitors is done in the first instance, must be the judges how far the counsel may be tolerated in absenting themselves. This court, sitting in St. Louis, sees that, if the absence of counsel in other courts would be a sufficient reason for putting off the trial of causes, there would be no use in going through the formality of opening court. Judges and suitors might wait all day until counsel could find time to attend. The due administration of justice will be best promoted by leaving such things to the discretion of the court of original jurisdiction. Where those courts interfere and give relief against judgments obtained in the absence of counsel, we feel no disposition to prevent their so doing ; but when a party seeks to substitute the discretion of this court for that of the court below, and to give relief under circumstances which, in the discretion of that court, do not entitle him to it, he must present a strong case.

The other judges concurring, the judgment will be affirmed.


author: Ryland, Judge,

text:
    City of St. Louis, Respondent, v. Murphy, Appellant.
    1. The St. Louis Criminal Court, in the case of an appeal from the city recorder, the cause being called for trial and the defendant not answering, on motion of the city attorney, affirmed the judgment; held, that the Supreme Court would not interfere with the discretion exercised by the Criminal Court in refusing to set aside the affirmance, the ground urged being that at the time the case was called the defendant was necessarily absent for a few moments.

      •Appeal from St. Louis Criminal Court.

    The facts sufficiently appear in the opinion of the court.

      C. C. Carroll, for appellant.
   Ryland, Judge,

delivered the opinion of the court.

The defendant was tried before the city recorder for a violation of an ordinance of the city, (for a breach of the peace,) and was found guilty. He was fined the sum of fifty dollars. He appealed to the Criminal Court. When the cause was called in the Criminal Court, the appellant did not answer. On motion of the city attorney, the judgment of the recorder’s court was affirmed. Murphy afterwards moved to set aside this judgment, and filed his affidavit in support of his motion. The court overruled this motion, and the appellant, Murphy, brings the case here by appeal.

In looking into the record, I find the appellant’s affidavit, in support of his motion, sets forth the facts substantially as follows : “On the day the case was set for trial, he, appellant, came into court with his witnesses, and remained, in court for a considerable time, and only stepped out a moment to attend to the calls of nature, when Ms case was called up and judgment rendered against him; that he was informed that no witnesses had been summoned against him up to a few days before, and therefore he did not think it necessary to employ an attorney ; that he was then informed that the subpoena for witnesses against him had only been issued that morning, and had not been returned when the case was called ; that he has a just and meritorious defence ; and that but for his momentary absence from the court-room, as stated above, his witnesses would have satisfied the court that his defence was ample and complete.”

This motion to set aside a judgment is addressed to the discretion of the court below. We can not say the discretion was erroneously exercised in this case. The appellant ran the risk of having no counsel to assist in bis defence, and left the court without leaving any one to act for him in his short and necessary absence. This was his own neglect. We therefore will not reverse the judgment under such circumstances.

By the city charter, as amended by the legislature in 1852 and ’53, the recorder has the same jurisdiction as justices of the peace within the limits of the city, in all state cases. He has jurisdiction over all cases arising under any ordinances of the city, subject to an appeal in all cases to the St. Louis Criminal Court; and every such appeal shall be taken and granted in the same manner as appeals are taken from and granted by justices of the peace to the Criminal Court (meaning the Circuit Court) under the general law of the state. How the statute concerning breaches of the peace (R. C. 1845, p. 674, § 15,) allows appeals to the Circuit Court to any person convicted under it. The 20th section of this act (R. C. 1845, p. 675,) declares, “ If the judgment of the justice shall be affirmed, or if, upon a trial in the Circuit Court, the defendant shall be convicted,” &c. Here, then, we see that the law has contemplated that the judgment in these criminal cases, for breaches of the peace, might be affirmed in the Circuit Court on appeal. There is nothing to prevent the same proceeding in the Criminal Court on appeal from the recorder’s court. In appeals from justices of the peace in civil cases, if the appellant fail to prosecute his appeal, the judgment may for that reason be affirmed.

There is no error, therefore, in the ruling of the Criminal Court, in affirming the judgment of the recorder in this case, because the appellant failed to prosecute his appeal when called. Let the judgment be affirmed ; the other judges concurring.


author: liEONARffl, Judge,

text:
    Funkhouser, et al., Plaintiffs in Error, v. How, Defendant in Error.
    X. A judgment against a garnishee in an attachment will not protect him against a subsequent recovery in favor of one who had, previously to the garnishment, taken an assignment of the debt from the defendant in the attachment.
    2. Where a garnishee, having notice of an assignment by the defendant in the attachment, fails to set up this matter as a defence to the garnishment, and a judgment is rendered against him, and he pays over the money to the attaching creditor; held, that the assignee is not entitled to recover the amount so paid from such attaching creditor, although such creditor had notice of the assignment during the pendency of the garnishment.

      Error to St. Louis Court of Common Pleas.

    Plaintiffs state in their petition substantially that on the 16th day of April, 1850, one Thomas Crew caused the life of Jacob Lesher to be insured for his own benefit by the Phoenix Life Insurance company in the sum of $500 ; that Lesher died March 1st, 1851; that on the 3d of July, 1851, Thos. Crew assigned said policy to Micajah B. Crew; that said Micajah, on the 2d day of August, 1851, assigned the same to plaintiffs ; that “ about the 1st of May, 1852, the defendant, under color of some judicial proceedings, commenced after the assignments aforesaid, and to which neither said Micajah nor these plaintiffs were parties, wrongfully and unjustly required and compelled said insurance company to pay to him said sum of $500, and has received said sum in discharge of the obligation of said company under said policy. Plaintiffs state that said sum of right belongs to them ; that the same has never been paid to them, and they ask judgment against the defendant therefor with interest,” &c.
    The finding of the facts by the court is as follows : “ On the 16th day of April, 1850, Thomas Crew caused the life of Jacob Lesher to be insured by the Phoenix Life Insurance company for the benefit of said Crew, in the sum of $500 ; about the 1st day of March, 1851, and while the policy of insurance was ■subsisting, said Lesier died, and said 'Crew became entitled, according to the terms of the policy, to receive of said company the sum of $500. On the 3d of July, 1851, Thomas Crew, for a valuable consideration, assigned said policy to Micajah B. Crew. On the 2d of August, Micajah B. Crew assigned the said policy to the plaintiffs ; but there does not appear to have been any consideration for the last named assignment, except so far as is to be presumed from the fact of the assignment. The agent of the said company (Wetzell) made said contract of insurance with said Thomas Crew for said company, and received the premium therefor. After the death of said Lesher, said agent forwarded notice thereof and proofs to the said company, that the loss might be adjusted ; but said proofs being informal, were returned to said agent to be corrected. Said proofs were formally corrected, and forwarded again by said agent to said company. Thomas Crew, before and on the 1st day of March, 1851, being indebted to the firm of How, Claflin & Cook, said firm on the 5th day of August, 1851, instituted suit in this court by attachment against said Crew to recover the sum of $625 37 then due, and caused said insurance company to be summoned as garnishee in said cause on the 5th day of August, 1851. The said company filed its answer on the 26th January, 1852, in which no mention was made of any assignment, and judgment on said attachment suit was rendered against said Thomas Crew on the 20th day of March, 1852, for $659 62, and against said insurance company on the garnishment, on the 20th day of March, 1852, for $480 80, the balance confessed, less $19 20 appropriated to the costs of said suit. Before the company adjusted and allowed the loss, and after -the company had been garnisheed and before the company answered, plaintiffs brought to said company the policy with the assignments thereon, and claimed the benefit thereof. They were informed by said company of the existence of the garnishment, and the defendant was soon informed by the company of the claim of the plain - tiffs. Thereafter and on the 14th day of January, 1852, the said company acted upon the proofs of loss, and allowed, in the name of Thomas Crew, ¡$500 under said policy. The firm of How, Claflin & Cook was composed of John How, William Claflin and Robert Cook. Pending the attachment and garnishment, and on the 1st day of March, 1-852, the plaintiffs moved ■the court for leave to interplead for said fund, which motion was overruled by the court. The plaintiffs were all this time residents of and doing business in the city, of St. Louis. After judgment had been rendered against the said insurance company upon its answer as garnishee of said Thomas Crew, the company paid to the attorney of How, Claflin & Cook the amount of said judgment — ¡$480 80 — which sum the said attorney paid to said How, C. & C. a few days after the assignment by Thomas Crew to Micajah B. Crew ; and Thomas Crew gave notice thereof to the aforesaid agent of the insurance company. No notice of the assignment by Micajah B. Crew to the plaintiffs was given until shortly after the garnishment answer was filed and before any judgment was rendered. Thos. & M. B. Crew and the said agent of the insurance company were residents of the state of Illinois. Whereupon the court declares that the plaintiffs are not entitled to recover, and gives judgment for the defendant.”
    A motion for a review having been overruled, the cause was brought to this court by the plaintiffs by writ of error.

      J. A. Kasson and JR. M. Field, for plaintiffs in error.
    I. The defendant received the money of plaintiffs with notice of their rights, and is liable to pay over to them. (Colcord v. Daggett, 18 Mo. 560 ; Quarles v. Porter, 12 Mo. 88 ; Powers v. Heath’s Adm’r, 80 Mo. 831.)
    II. The attaching creditor can acquire no greater rights against the garnishee than the judgment debtor had, with the single exception of fraud. (Drake on attachment, § 677.) At the time in question, Thomas Crew, the judgment debtor, had no rights at all. They had been assigned. Therefore How ac-squired no right to the fund, and must pay to the party entitled, ((Stevens v. Stevens, 1 Ashmead, 190 ; Hudson v. Robinson,, 4 M. & S. 478.)

      ¡Krum & Harding, for defendant-in error,
   liEONARffl, Judge,

delivered the opinion-of the court.

In Gates v. Kirby, (13 Mo. 175,) the maker of a promissory note., being sued for the money by one -to whom it had been assigned, pleaded that he had been previously garnisheed as the debtor of the -original payee, and, condemned to pay tbs •debt to the attaching creditor, although he had relied in Ms answer upon the fact of the assignment as a defence to the attachment. This defence was overruled in the original -court, ■and the -assignee recovered his debt against the maker. The judgment was affirmed here upon appeal, this court saying, ** the assignment -constituted a valid defence te the garnishment. That this defence proved unavailing, cam not affect the rights of the assignee. He .(the garnishee) had his remedy, and may not have lost it yet; but if he has, it has not been ¿he fault of.the present plaintiff.” And this decision, we think, is the legitimate result of acknowledged legal principles. The attachment arrested the debt in the hands of the garnishee, if it were then owing to -the attached debtor, and not otherwise. The .assignment of the note had however previously transferred the debt to the assignee, and the adjudication between the attaching creditor and the garnishee, that the debt was due to the «original payee, did not touch the rights -of the assignee, who was a stranger to the proceeding. Although, in Quarles & Thompson v. Porter, (12 Mo. 83,) the judge who delivered the -opinion of the court, speaking in reference to the effect of a judgment against the garnishee upon the rights of an assignee of the debt, remarks: “The statute prescribes no mode by which an assignee can be brought before the court and have his rights litigated; but as the t judgment is not conclusive against him unless be has notice and chooses to come in and in-terplead, be would have a right at anj subsequent time, before the money was paid oyer to the attaching creditor, to arrest the judgment, or after payment a right to his action to recover it-back j” and again, in Colcord & Hall v. Daggett, (18 Mo. 56,) it is said by the judge who delivered the opinion there :• “Daggett [the maker] will be indemnified in paying the note to the plaintiffs [the attaching creditors], who will become liable' to the real holder, should'he prove not to be Solomon Subletfc [the attached debtor] yet it is to be observed, that these remarks were, in both cases, mere obiter dicta, and not the very matter decided in either; while, in the ease to which we have just referred, it was the very point in judgment, and constitutes that case a direct authority, that the judgment against the garnishee does not divest a prior assignee of his original right of action against his own debtor. Assuming this to be correct,, it would seem to follow, as a necessary consequence, that the assignee can not sue the attaching creditor and recover back from him what the latter has received pursuant to the condemnation in his favor against the garnishee. That recovery is, as to the assignee, who does not become a party to the record by interpleading, res inter alios acta; and of. course his rights are not affected by it either for good or evil. It does not divest him of his property by annulling his just claim against his own debtor ; and of course confers upon him no right to follow the debt into the hands of the attaching creditor. Although, as a general rule, judicial proceedings are, as far as practicable, so conducted as to render the performance of judicial sentences safe to the parties who are required to obey them, yet this can only be effected by requiring all persons in interest to become parties to the proceeding. It is a fundamental principle upon which all security for private rights rests., and which never gives way to any other, that no one is bound by a judicial proceeding to which he is not a party, or at least of which he has not had notice and might have become a party. It was competent for the legislature to provide a mode, upon the attachment of debts, of giving notice thereof, and to require all persons interested to interpose their «claims; but they have not done so, and it is not in our power to remedy the omission by declaring the ex parte condemnation ' against the debtor, now allpwed by law, to be conclusive upon the rights of strangers. The sentence binds the parties to the proceeding ; but we can not allow it to do more without violating a principle essential to the preservation of private rights. The evil complained of proceeds from an infirmity incident to all ex parte sentences, and we can not remove it without pro■ducing still greater evils. The remedy of the party who pays under such circumstances must be against the attached debtor. As between these parties, the garnishee may recover for money paid by him to the use of the debtor towards satisfying the judgment.

It is argued, however, that even although the assignee can not be compelled to surrender his rights against his own debtor, and to seek the recovery of his debt from the attaching creditor, yet there can be no objection to his doing so, if-he be willing to accept of that remedy. The answer to this, however, is, that the attaching creditor has also acquired rights under the sentence which would be violated by such a proceeding. The allegation of the creditor is, that the garnishee is indebted to áhe attached debtor, and such is the sentence of the court upon a contest of this matter between the attaching creditor and garnishee. As between these parties, the sentence is conclusive as to such indebtedness, not only against the garnishee, but also in favor of the attaching creditor. That fact is the very foundation of the condemnation. It is the very question litigated and contested between the parties, and pronounced upon by the •sentence. It will be readily admitted that the garnishee, after sentence and judgment, can not recover the money back from the attaching creditor upon an allegation that the debt was n,ot owing to the attached debtor as the sentence supposed ; and the reason is, that this matter has already been judicially passed upon between these parties, and therefore, as to them, is res judicata — a truth that neither can contest as long as the sentence stands.. It seems to.be supposed, however, that th® validity of the sentence depends on the truth of the fact upon which it was predicated, and that this- fact is therefore open for discusssion, notwithstanding- the sentence. It is suggested that, where corporeal1 property, either real' or personal, is attached^, the lien of the attachment is upon the rights of the- debtor ia the thing attached, and not u-pon-the- thi-ng itself' so- as to conclude the rights- of others-; and that this- is- the case also-in re*-ferenee to the garnishment o-f debts,, and that therefore, in the-latter case as ia the former,, the attaching creditor acquires only sueh right to the attached debt as his debtor himself had, and no more. Hence- it is argued that it is competent for the- real! owner of the- debt to- follow it in the hands of the attaching; creditor, and recover it from him, in like manner as if it were-corporeal'property; But- we-think there i-s a manifest distinction between- the cases- Where a debtor is garnisheed, the-question, as we have before remarked., contested between the parties- to- that issue, and passed upon by the sentence of condemnation, is- the fact of the garnishee’s indebtedness to the attached debtor ;. while-, in- the other case, no question is made between the original plaintiff and defendant to the- suit as to> the title of the latter to the attached- property, and of course-that matter is not concluded by the recovery so as- to hind the rights of strangers to the judgment. In the one case, the question of title to the corporeal property attached has not been passed upon between- plaintiff and? defendant in the attachment suit, and therefore is open for discussion to all parties interested ;■ in the other, the fact of the garnisheed indebtedness to the attached creditor has been judicially determined between the parties to that issue, and for that reason- can mot be again brought into litigation by- either of them, or by a stranger seeking to- recover from the attaching creditor the fruits of his judgment, upon the ground that the garnishee was not indebted to the attached debtor, as was adjudged. The sentence binds parties ; and privies and- strangers, whose rights are not touched! by it, can. net be. allowed, to- draw its validity into, question. fo.T the purpose of divesting either party of rights acquired under it against the other.

The court, as before remarked, decided, in Gates v. Kirby, that a judgment against a garnishee did not protect him against a subsequent recovery on the part of the assignee of the note, and we but follow that decision to its legitimate results when we declare, as we now do, that in such case the assignee can not sue the attaching creditor, but is confined to his original remedy against his own debtor. Applying this doctrine to the case now before us, and limiting it to the facts of the case, the result is, the judgment must be affirmed. The garnishee had notice of ■the assignment of the debt to the plaintiff before he answered ; he omitted to set up this matter in his defence, and has paid ever the money to the attaching creditor according to the sentence. Under these circumstances, without at present going further, we 'are of opinion that the plaintiff can -not recover against this defendant, although the former had notice of the pending of the garnishment against his debtor, and did not in-terplead, and although, too, the present defendant was informed, during the same time, of the alleged assignment to the plaintiff.

Judge Ryland concurring,

-the judgment is affirmed.

Scott, Judge, dissents.


text:
    Marmaduke, Respondent, v. McMasters, et al., Appellants.
    1. Where a cause is tried by the court without a jury, there should he a finding of the facts by the court.
    2, Quere, whether a garnishee who fails to set up in his answer, as a defence to the garnishment, the fact of a previous assignment of the debt by the defendant in the attachment, for the reason that he had no notice of such as.signment, is entitled to relief against a judgment against himself for the debt in favor of the plaintiff in the attachment.

      ^Appeal from Hannibal Court of Common Fleas.

    The facts sufficiently appear in the opinion of the court.

      Wm. M. Coolee, for appellants.

      Richmond, for respondent.
   LEONARD, Judge,

delivered tbe opinion of the court.

This was a petition by a garnishee for relief by injunction against a judgment recovered against him, in favor of an execution plaintiff, upon the ground that the note, by virtue of which his indebtedness existed, had been transferred before the garnishment, and that, having no notice, of the fact, he had failed to rely upon it in his answer. The assignee is a party to the suit, and, on a trial before the court, the judgment against the garnishee was perpetually enjoined, and the present plaintiff decreed to pay the money to the assignee ; but there is no finding of the facts, and for this reason the judgment must be reversed and the cause remanded.

We had occasion in the recent ease of Funkhouser and others v. How (see ante, p. 44,) to consider the rights and liabilities of attaching creditors in a case somewhat similar to the present, and a majority of the court then held that the attaching creditor had a right to retain the money recovered in good faith against the garnishee, and paid over to him, against an as-signee, although he had notice during the pendency of the suit of the alleged assignment. The decision was confined to the facts of the case, and it is to be observed, as already stated, that the money had been paid over pursuant to the sentence, and the garnishee, at the time he answered, had notice of the as- ^ signment, and failed to rely upon it in his defence. In the present case, the garnishee himself seeks to be relieved against the recovery, on the alleged ground of his ignorance of the assignment and consequent failure to set it up in answer to the garnishment. Judge Tucker, in his Commentaries, (2 vol. 107,) maintains that it is the duty of the garnishee, if he have notice at any time before the money is paid over, although after judgment, to institute proceedings to prevent the execution of the sentence, and that if he fail to do so, he will be liable. This assumes that if the garnishee first come to the knowledge of the assignment after judgment against him, he is entitled to be relieved against the execution of the sentence ; but whether ibis court would go that length in relieving a garnishee, without notice of the assignment, and therefore without fault, or would hold that the rights of the attaching creditor and garnishee were fixed by the judgment obtained in good faith and without collusion, is left for future discussion and decision, when the necessary facts shall be found and brought before the court, if it should then arise in the case. All of us concur in reversing the judgment on the ground already suggested; and it is accordingly reversed and the cause remanded.