author: GOODE, J.

text:
    WILLIAM W. GIPSON and ELIZABETH DILLENDER v. NELLIE OWENS and ROBERT JOHNSON OWENS, Appellants.
    Division One,
    December 30, 1920.
    1. PLEADING: General Allegation: Demurrer Ore Tenus: Motion for Definiteness. An allegation that “Arabelle Newson took Jasper Gipson into her home and adopted him as her legally adopted heir” would he good against a demurrer ore tenus as a statement of statutory adoption, hut subject, perhaps, to a motion for more definiteness of detail.
    2. CHILDREN: Adoption: By Deed. The only mode of adopting a child known to the law in 1871 was hy a deed executed, acknowledged and recorded in the county of the residence of the person executing the same, as in the case of a conveyance of real estate; and a married woman was then capable of adopting by joining her husband' in such a deed.

      3. -: -: Contract to Adopt: Character of Proof. Prior to 1871, and since, courts of equity have specifically enforced contracts to adopt a cMld made upon sufficient consideration, like tfie relinquishment of his custody and services by his parentsi and services thereafter rendered by him to the adopting parent; but courts have been exacting about the cogency of the 'evidence necessary to prove such a contract was made, but the character- of the proof is unimportant where the other evidence clearly shows there was no contract to be enforced.
    4. -: -: By Deed: Partition. An action for partition based on plaintiff’s claim that their father had been adopted by deed does not lie if defendants are in adverse possession, for issues of statutory adoption involve legal and not equitable principles.
    5. - — : —•-: Dost Deed: Oral Proof. A deed to adopt a child, or a contract to adopt, when proved to have been made and afterwards lost or destroyed, may be established by evidence of the best character available, and even by oral testimony, and the terms of such a lost deed or contract may be proved by. secondary evidence like the terms of any other lost document.
    6. -: -: ———■: Character of Proof. Evidence to establish a lost contract to adopt a child must be clear, cogent and convincing; and if reliance is upon a lost or destroyed deed of adoption, all of its material parts niust be established by the testimony.
    7. -: -: -: -: Instruments of Uniform Contents. A deed of adoption is not a document or record of uniform contents, but may contain whatever conditions and considerations the parties may choose to insert, and in consequence there can be no satisfactory proof of its contents unless all its material parts and necessary elements are substantially proved.
    8. —■-: ■ — =-•: -: Insufficient Proof. Where no witness testified to having seen either a deed of adoption signed and acknowledged by the adopting parents, or the record of one, and there is no evidence that the husband of the adopting mother signed the deed, a judgment finding that the said mother adopted t-he child is not supported by sufficiently substantial evidence, although there is evidence that a deed of adoption was recorded and that the record was afterwards destroyed by fire.
    Appeal from Dunklin Circuit Court. — Eon. W. 8. G. Walker, Judge.
    REVERSED AND REMANDED.

      John T. McKay and Hall & Billings for appellants.
    (1) Legal adoption eonld only be procured by following the law as it existed, in 1871, which required a deed duly acknowledged, and recorded in the county of! the residence of the adopter; therefore, plaintiffs must allege the execution, acknowledgment and recording of the deed and that it was recorded in Dunklin County, Missouri, and having failed their petition states no cause of action, (a) This objection may be raised for the first time in the Supreme Court. Paddock v. Somes, 102 Mo. 226; Hudson v. Cahoon, 193 Mo. 547; Hubbard v. Slavens, 218 Mo. 598; Marx v. Watson, 168 Mo. 133. (b) The ultimate and issuable facts must be stated in the petition if not supplied byt answer' or reply. Sec. 1794, R. S. 1909; Conway v. Reed, 66 Mo. 346; Newham v. Kenton, 79 Mo. 382; Ross v. Ross, 81 Mo. 84; Rush v. Brown, 101 Mo. 586; MeCadam v. Scudder, 127 Mo. 345; Sidway v. Missouri Co., 163 Mo. 342; Redd v. Bott, 100 Mo. 62; Paddock v. Lance, 94 Mo. 283. (e) Legal adoption is statutory adoption by deed executed, acknowledged and recorded. Sec. 599, R. S. 1879; Sarazin v. Railway, 153 Mo. 479; Beach v. Bryan, 155 Mo. App. 51, 57; Hockaday v. Lynn, 200 Mo. 461. (d) The petition had to allege that the statutory deed was executed, acknowledged and recorded, and that the same was lost or destroyed, and the record of the de.ed was burned, otherwise it is fatally defective. Newham v. Kenton, 79 Mo. 382; Ross v. Ross. 81 Mo. 84; Rush v. Brown, 101 Mo. 586; Reed v. Bott, 100 Mo. 62; Paddock v. Lance, 94 Mo. 283; Grantham v. Gossett, 182 Mo. 651; Rosen-wald v. Middlebrook, 188 Mo. '58. (e) Partition is a proceeding at law which can he converted into an equitable action by answer, but in the case at bar no such answer was filed. Watson v. Priest* 9 Mo. App. 263; Green v. Walker, 99 Mo. 68. (f) The petition commingles law and equity in one count and is bad. Sec. 1795, R. S. 1909; Henderson v. Dickey, 50 Mo. 161; State ex rel. v. Tittm.an, 103 Mo. 553. (2) There wei'e but two ways known to the law at the time laid in this alleged adoption whereby plaintiffs can become entitled to a distributive share iof the estate of Arabelle Newsom, the common source of title her.ein. They are as follows: first, by deed of adoption; and, second, by contract of adoption and performance on the part of the person adopted, (a) Sec. 599, R. S. 1879. (b) Respondents have declared on a legal adoption which means by deed duly acknowledged and recorded, and they are held to prove this caus.e and no other. Henry County v. Citizens Bank, 208 Mo. 209; Henry County v. Farmers Bank, 208 Mo. 239; Newham v. Kenton, 79 Mo. 382; Ross v. Ross, 81 Mo. 84; Paddock v. Lance, 94 Mo. 283; Spindle v. Plude, 247 Mo. 48; Reed v. Bott, 100 Mo. 62; Bank v. Roher, 138 Mo. 369; Joyce v. Growney, 154 Mo. 253. (c) The plaintiffs cannot state one cause of action and recover on another, and as they have based their petition on legal adoption, they must prove legal adoption. Reed v. Bott, 100' Mo. 62; Weil v. Posten, 77 Mo. 284; Hutson v. Tyler, 140 Mo. 264, -(d) The proof of legal adoption where the deed is- not offered and where as in this case an attempt Avas made to show the records were burned after the execution of the deed, must show the deed was duly acknowledged and recorded and must be clear, cogent and hav.e such probative force as to leave no' doubt in the mind of the chancellor that the deed was executed, acknowledged, and recorded as the law provides, and mere evidence of declarations of Arabelle Newson, made in her 'lifetirne that she intended to adopt Jasper Gipson, plaintiffs’ deceased father, as her son and heir and that she had adopted him, and that she went to Kennett to adopt him and after she returned that she had adopted him, if true, and the further fact that Jasper Gipson resided with her as a member of her family from the age of ten or twelve years until he attained his majority, if true, was not sufficient to establish the fact that Arabelle Newsom did in fact execute and acknowledge a deed of adoption. Steel v. Steel, 161 Mo. 566; Kinney v. Murray, 170 Mo. 674; McElvain v. McElvain, 171 Mo. 244; McKee v. Higbee, 180 Mo. 658; Grantham v. Gossett, 182 Mo. 651; Rosenwald v. Middlebrook, 188 Mo. 58; Russell v. Sharp, 192 Mo. 285; Wales w Holden, 209 Mo. 552. (e) The evidence shows Amabelle Newsom was a married woman in 1871 at the time of ,the alleged legal adoption, and no' proof that her husband joined her, and if the evidence was sufficient to establish the execution, acknowledgment and recording of a deed of adoption it would still be void as to her. Sarazin v. Railway, 153 Mb. 479.

      Smith & Seed for respondents.
    (1) The petition states facts sufficient to constitute a cause of action, (a) This is an action for partition and the appellants in their answer deny that respondents' have any title, and this formed an issue to be decided by the chancellor. The chancellor acquired jurisdiction to determine the question of title as requested by appellants, and decided that respondents had an interest in the property as heirs of an adopted son, and after acquiring jurisdiction for one purpose, proceeded to partition the lands as prayed for in respondents’ petition, and to complete justice between the parties, and determine all matters in issue, even adjudicating matters of law and equity. Waddle v. E'razier, 245 Mo. 391; Dameron v. Jameson, 71 Mo.'97; Savings Institution v. Collonious, 63 Mo. 290; Pares v. Haley, 61 Mo. 462; Hagan v. Bank, 182 Mo. 342. (b) Where plaintiffs have an equitable title and ask the aid of the court of equity to establish it, if the court ascertain that he has an interest, and what that interest is, the doctrine that partition cannot be had (when the defendant is in adverse possession of the premises), does not apply, the court having acquired jurisdiction of the cause may proceed to determine the whole controversy by decreeing a partition of the premises. Dameron v. Jameson, 71 Mo. 100’; Rozier v. Griffith, 31 Mo. 171; Banard v. Keathly, 230 Mo. 209. (c) Defendants by answering over waived any defects in the petition except its failure to state any cause of action, all reasonable intendments being indulged in favor of the petition after verdict and judgment. Hoover v. City of Pulton, 177 Mo. App. 95'; Metropolitan Ry. Co. v. Express Co., 145 Mo. App. 371. (2) Courts of this State bold-that adoption can be bad in four ways: ' (a) By deed of adoption, wbicb is statutory adoption, (b) By contract of adoption and performance on tbe part of tbe person adopted, (o) Where acts and conduct of parties are such that tbe adopter and those claiming under him are estopped from disputing; it. Horton v. Throll, 183 Mo. App. 677; Fisher v. Davidson, 271 Mo. 195; Buck v. Meyer, 195 Mo. App. 287. (d) By collateral agreement. Sharkey v. McDermott, 9.1 Mo. 647. (3) Wagner’s Statutes 1872, sec. 1, page 256, was the law in force at the time of the alleged adoption. This statute was interpreted in Lindsley v. Patterson, 177 S. W. 826. “This statute only authorizes the husband and wife to adopt a child or children in the manner and form therein stated, but it does not prevent them or either of them from adopting a child or1 children in iany other lawful manner.” The learned judge in the same case in referring to Lynn v. ITockaday, 162 Mo. Ill, sáid, “I wish, with due deference to all, to vigorously dissent” from the holding that there was no common-law adoption. (4) Under our practice, if sufficient facts are stated to entitle the party to relief, the conclusions of the law the pleader may draw from them, and the particular relief he may ask, may, if necessary, be disregarded, and in such cases the court may grant any relief consistent with the case made by the plaintiff- and embraced within the issues. Sec. 2100; R. S. 1909; Sharkey v. McDermott, 91 Mo. 657; Buck v. Myer, 195 Mo. App. 287. (5) Judgment and decree of the court is not for the wrong party and' is not against the evidence, the-weight of the evidence, the law, and the law under the evidence. Signaigio v.' Signaigo, 205 S. W. 23; Fisher y. Davidson,- 271 Mo. 195*; Buck v. Myer, 195 Mo. App. 287; Lindsey v. Patterson, 177 S. W. 826 ; Thomas v. Maloney, 142 Mo. App. 193; Horton v. Throll, 183 Mo. App. 677; Hoekaday v. Lynn, 200 Mo. 456.
   GOODE, J.

This action was filed to have partitioned the west half of the northwest quarter of Section Thirteen, and twenty-five acres a part of the east half of the east half of the northeast quarter of Section Fourteen, all in Township- Twenty, north, Range Nine, east, and -containing 105 acres. So the description reads' in the petition and in the decree.

Plaintiffs are the only children and. heirs of Jasper Gipson, who died in 1895, intestate. Elizabeth Dillender, one of the plaintiffs, is a married woman, hut the first name of her husband is not shown in the record.

The defendant Nellie Owens is the widow,. and the defendant Robert Johnson Owens is the son, of. C. J. Owens, called “Lum” and “Lummy” Owens by the witnesses, and we presume his first name was Columbus. He died intestate May 5, 1916.

There was another defendant in the case, the Missouri State Life Insurance Company, which did not join in the appeal. Said C. J. or Lum Owens and his wife, the defendant Nellie Owens, executed a deed of trust on the land in controversy in favor of said life insurance company, on October 27, 1915, to secure a debt of two thousand dollars.

Unless the facts to be stated presently show the two plaintiffs own an undivided half interest in said land as the children of their deceased father, Jasper, Gipson, Robert Johnson Owens owns the entire interest subject to the said deed of trust and to the dower right of his mother, Nellie Owens. The common source of title was Arabelle Newsom, who was the mother of O. J. Owens, she having been married to a man named Owens'prior to her marriage to her second husband, Patrick Newsom, or “Paddy” Newsom, as lie is called by the witnesses. The two defendants assert that G. J. Owens inherited the entire fee to said land from his mother, Arabelle Newsom, but the plaintiffs assert that said Arabelle had adopted as her son their father, Jasper Gipson, and that said Jasper having', died in the lifetime of said Arabelle, they, her grandchildren, inherited an undivided one-half interest in the land. Regarding the matter of adoption, the petition alleges: “That on or about the-day of-, 1871, Jasper Gipson was legally adopted by Arabelle Newsom, who was then a resident of Dunklin County, Missouri, and that said Arabelle Newsom took said Jasper Gipson into her home and adopted him as her legally adopted child, and said Jasper Gipson resided in the home of,said Arabelle Newsom and treated her with the respect and affection due from a dutiful child to a mother so long as the said Jasper Gipson lived, and was known by the name of Jasper Newsom until he became of legal age and was self-supporting.”

The answer denies that Jasper Gipson ever was adopted by Arabelle Newsom. The finding1, on the issue in the judgment or decree, as it is termed in the record, was as follows:

“That Jasper Gipson, about the year 1871, when he was about twelve years of age, was adopted by Ara-belle Newsom as her bhild, and that he was at all times thereafter treated by her as her child until the date of his death, which was some time in the year 1896 ; that at the time the said Arabelle Newsom adopted the said Jasper Gipson as her child she took him into her household and assumed the control, custody, and care of the said Jasper Gipson, and held him out and introduced him as her adopted child so long as he lived; that the said Jasper Gipson was taken into the home of the said Arabelle Newsom when he was about twelve years old and remained as a member of her family until he was married; that he at all times rendered to Arabelle New-som such obedience and service, and such affection and attention, as are usually rendered to a parent by a cshild; that the said Arabelle Newsom bestowed upon the said Jasper Gipson such care, affection and attention as are usually bestowed upon a child by a parent; that said Arabelle Newsom acknowledged said adoption to her friends and neighbors, both before and after her husband’s death, and by her acts and words ratified said adoption after the year 1889; and until her death in 1909 she claimed that she had adopted Jasper Gipson, and that he was her adopted child. ’ ’

Jasper Gipson was a half-nephew of Arabelle New-som, the son of her half sister by a first marriage. Said half sister made a second marriage to a man named Prewitt, and was living with him in Tennessee at the time of her death, the date not being proved. Prewitt owned land somewhere in Arkansas and when his stepson Jasper Gipson was a lad ten or twelve years of age, Prewitt passed throug'jh Dunklin County on his way to see the land. He took his step-son with him, paid a brief visit to Arabelle and Paddy Newsom and left the boy with them while he was absent to look after his land. During that time the boy told the Newsoms he had been mistreated by his step-father, and when the latter returned in two or three weeks, the Newsoms refused to let him have the boy.' In fact, they had the house guarded for a week by the neighbors to prevent Prewitt from taking him. Prewitt went back to Tennessee, and later two of the boy’s uncles came to Dunklin County and endeavored by a legal proceeding to take the boy away from the Newsoms. Whatever the proceeding may have been, and the nature of it is not disclosed, it resulted in favor of the Newsoms and they retained the custody of the child.

According to the testimony of two or three witnesses, who base their statements on what Mr. and Mrs. Newsom' told them, some kind of proceeding was gone throug'h bir the Newsoms for the purpose of adopting the boy, but whether the attempt to adopt occurred before the uncles made the aforesaid effort to get the custody of the boy, or after that case, is not clearly shown. These events happened from forty-five to forty-eight years before the trial of the present case, and the witnesses were not always definite about the dates of occurrences or their sequence. The court below found the child was adopted in 1871, but if he was ever adopted it may have been at any time between 1870 and' 1872, or maybe later, according to what witnesses we believe; for some of them testified the adoption occurred before the destruction of the court and deed records of Dunklin County by the burning of the courthouse in 1872, and others that it occurred after the fire. No witness had ever seen a deed of adoption, nor did any witness testify that Atrabelle or Paddy Newsom had said a deed of adoption was executed by them. What the witnesses said about this matter was that both the Newsoms declared at different times, Mrs. Newsom the oftener, that Jasper Gipson had been adopted by them; that they had fixed it so he could not be taken away from them; that he would “heir” their property just like their son Lum would; that the two boys were their only heirs, and similar expressions. Mrs. Newsom survived her husband for many years and used such expressions down to the time of her death, according to some witnesses.

Jasper Gipson continued to live on the Newsom farm and with the Newsoms as long as Paddy Newsom lived, and most of the time thereafter until Jasper’s death in 1896. He was given the same education as Lum; that is, he went to a country school awhile and learned to read and write, and but little more.

A house was built on the premises — the evidence suggests that it was a log house — and when Jasper married the first time he moved into that house and his child-. ren, the two plaintiffs, were bom there. After their mother’s death, the date of which is not given, Jasper Gipson worked for a year at a cotton gin fop a man named Eulitt and he and his children lived in Eulitt’s lióme during the year. Jasper married for a second wife an aunt of Eulitt. She only lived a few months after the marriage and later he married a third time. After her death, he went back to the Newsom place to live and died there in 1895. His aunt, Arabelle Newsom then took the two children, kept them until her death, and afterward they lived on the place with her son Lum until they married. In fact, the plaintiff William W. Gipson lived there until about a year before the filing of the present action. The record is vague about whether they lived on the land in question when the suit was begun, but it is stated in the brief filed in their behalf that “the suit was tried as a chancery proceeding because appellants are in possession of the premises and by their answer deny that respondents have any right or title in the land.” (Italics ours). As long as William . Gipson stayed on the land after the death of his aunt, he paid Lum Owens rent, but said he didn’t know his rights as the heir of his great-aunt, Arabelle New-som, or he wouldn’t have paid rent — that he had an idea about his riigths, but didn’t know how to assert them.-

Reverting to the question of adoption, we will state the evidence which has any tendency to prove a deed of adoption was executed. As already said, no witness testified to seeing a ¡deed or hearing directly from either Mr. or Mrs. Newsom that they had made one. A witness, A. G. Cagle, a clergyman, testified that on one occasion he asked Jasper this question: “Have you any record after the courthouse burned of your adoption?’ He said, ‘I guess so.’ ” This witness further testified as follows:

“Aunt Arabelle got A. Henderson, who is now at Granite, Oklahoma, to take her and Lummy Owens and Jasper to Kennett to have him adopted, and when they come, they entered suit.
“Q. Just a minute, do you remember the date that they went to Kennett? A. No, I don’t know the date they went.
“Q. Do you know how they went? A. Went in >a wagon.
££Q. Do you know the year? A. Somewhere in 1870. ...
“Q. Who were along’ on this-trip1 to Kennett? A. No one, as far as I know,'outside of Henderson and his wife and Aunt Arabelle and O’. J. Owens and the hoy.
££Q. And, now, all you know about any part of this adoption is only hearsay, is it not, Mr. Cagle? A. Yes sir. I was not an eye witness, no.
££Q. You never saw any deed of adoption? A. No sir.
<£Q. You don’t know whether they adopted him or not. A. No sir. All I know first and last and always is that they went out and said they were going for that purpose and came back and said they did 'it. That is all I know.
££Q. Well, who said they did? A-. Aunt Ara'b'elle, C. J. Owens, and Jasper from time to time told me.
££Q. Jasper was just a boy at that time? A. Sure.
££Q. Did he tell you that when he got back? A. No, no. Jasper did after he got to be a young man.
£ £ Q. Did he tell you that they had any deed of adoption? A. No, just said he was adopted.
“Q. You knew it took some kind of an instrument in writing to adopt a child, didn’t you? A. Sure.
££Q. You did not see a deed of adoption? A. No.” The foregoing testimony of Rev. A. G. Cagle, and the testimony regarding the statements of Paddy and Arabelle Newson (mainly of the latter) that they had fixed it so the boy couldn’t be taken away from them, and their oft-repeated declarations that he was their adopted son, and would ££heir” along with Lum, constitute the evidence tending to show an adoption, except the testimony of George W. ¡Dillender, the father-in-law of Elizabeth Dillender. This witness said that after his son had married Elizabeth Gipson, he paid him a visit/ The son and his wife were living at the time in the same house with Lum Owens. The occasion was Christmas eve, the 24th of December, 1911. While Dillender’s son and his wife were getting breakfast in the kitchen that morning, Dillender and Owens were in another room of the house talking, and in the course of the conversation Owens told Dillender what -was going to come to the children of Jasper Gipson bye and bye; said their father was the adopted heir to his mother; that his mother went and had him adopted; had two or three lawsuits about him. Later Lum Owens told th.e witness he was building a home for the children of Jasper and that the land where the house was' being built belonged to them. This was before Owens married. On cross-examination the witness gave direct testimony about a deed of adoption:
“Q. You never saw any deed of adoption, did you, Mr. Dillender? A.'No sir, never saw any deed of adoption; he said that it was adopted, but it got burnt up there at the court house.
“Q. What got burned up at the court house? A. He said the adoption, record of the adoption.
“Q. Didn’t he have the record at home? A. Tie didn’t say whether he had or not. I didn’t ask him about that.
“Q. He never said there ever was any deed of adoption either in existence, did he? A. He said the deed of adoption was on record until it got burned up.
‘ ‘ Q. He told you there was a deed of adoption on record until it got burned up? A. Yes sir, that is just what he said.
• “Q. When did he tell you that? A. He told me on Christmas Eve, 1911.”

One witness, Mrs. Tennie Summers, said that on one occasion when Mrs. Newsom was sick and thought she would die, she said to the witness she had two boys, Lum and Jasper, one. was as near to her as the other — there was not a straw’s difference between them — and they would get what was left when she died.

The testimony of the witnesses for the defendant was mostly of a negative character; in effect that though they were acquainted with and neighbors of the New-soms, they had never heard them mention the adoption of Jasper Gipson. But one witness, Mrs. Amanda Ivit-chell, testified that on an occasion when Jasper Gipson was very ill and in bed — an illness from which he never recovered — Mrs. Newsom said in his presence that people had told it around she had adopted Jasper audit looked like she was having as much trouble as if she had, that she had taken “Jap” and the.ichildren back three times; that Jap had asked her to take these children if he died and left them, and to take care of them, and she said, “I am doing the best I can, and if they mind me and stay at home, I any going’’ to see that they have something or other when I leave them.” Jasper Gipson heard this conversation and said nothing, so the witness stated.

The decree of the courLwas that the Missouri State Life Insurance Company held a lien on all the land prior to the interests of either of the parties to the litigation, but that as between the parties the liability therefor should be charged against the interest of the defendants, Nellie and Robert Johnson Owens, and this the decree did.

The court adjudged further that the two plaintiffs as children of Jasper Gipson were entitled to a one-fourth interest each' in the fee of the lands in controversy, and that Robert Johnson Owens was entitled to an undivided half interest in the fee, subject to the dower interest of his mother. This appeal was taken by the defendants, Nellie Owens and Robert Johnson Owens.

I. Prom the petition to the decree an ambiguity runs regarding the theory upon which relief was sought and granted — whether for the reason that the father of the plaintiffs had be.en adopted by the mode provided in the statutes, or because Mrs. Newsom had contracted with some one to adopt him, and pursuant to the contract, Jasper Gipson had lived in her family, been dutiful and ■had rendered services until he was of age. The petition says, “Arabelle Newsom took Jasper Gipson into her home and adopted him as her legally adopted child.” Tlie allegation would be good against a demurrer ore tenus as a statement of a statutory, adoption, but subject, perhaps, to a motion for more definiteness of detail; but immediately following the said averment facts are alleged which look like the pleader had in mind a contract to adopt followed by performance on one side. The witnesses in testifying rambled along both ways, and the decree first found Jasper had been-adopted in 1871, when twelve years of.age, and then found other facts suggesting that the court believed a contract to adopt him had been entered into by Mrs. Newsom and performed by Jasper.

The only mode of adopting a child known to the law at the time of the supposed adoption of Jasper Gipson was by a deed “executed, acknowledged and recorded ^11 ^ie GOlmty of the residence of the person executing same, as in the ease of a conveyance of real estate.” A married woman was capable of adopting by joining her husband in such a deed. [1 Wagner’s Statutes, Chap. 28.]

Prior to that time, and since, courts of equity have specifically enforced contracts to adopt a child made upon sufficient consideration, like the relinquishment of his cllsto<:V and services by his parents and services thereafter rendered by him to the adoptive parent. But the courts have been exacting about the cogency of the evidence necessary to prove such a contract was made. [See Kinney v. Murray, 170 Mo. 674, and cases cited therein and below in this opinion.] Suffice it to say, as to that doctrine in connection with the present case, that here there was no contract to adopt made with any one, and hence there is no contract of the kind to be enforced. The Newsoms did not obtain the custody of Jasper Gipson upon any agreement with • his step-father or other-person. On the contrary the boy had been left with them for a short while by his stepfather, and afterward was kept by them against the stepfather’s will and the will of his uncles.. No contract to adopt him was made either with Prewitt- or with the boy or any one in his behalf, and we will deal with the appeal on the theory that the court found there had been a legal or statutory adoption. On that theory whatever interest, if any, the plaintiffs, as his children and as heirs of Mrs. Newsom, have in the land in controversy is derived from \the execution and recording óf a deed, in the manner provided by the statutes. This being; true, an action for partition does not lie, for the interests- of all parties are legal and not equitable, and the defendants are in the adverse possession of the property, to be divided. [Chamberlain v. Waples, 193 Mo. 96.] Nevertheless, the defendants not having insisted upon this defense, we will consider1 the case further.

II. The vital question is whether a statutory adoption, that is to say, a complete execution of the right kind of a deed, was established firmly enough to support the finding of the court that Jasper Gipson actually , had been adopted by Arabelle Newsom. The answer to this question involves, first: An inquiry regarding! whether, if such a deed had been made and was lost, its contents could be established by secondary evidence; and- second: If they can be, whether this was done in the present case with a degree of completeness which satisfies the requirements of the law.

(a) A deed of adoption or contract to adopt when proved to have been made and afterwards lost.' or destroyed, may be established by other evidence of the best character available, and even by oral testi-*uony. In a case decided by this court where an alleged contract to adopt a child was based on a correspondency between the child’s father and the person said to have agreed to adopt the child, a letter of 'the correspondence in which the proposition to adopt was said to have been contained had been lost, and oral testimony as to its contents had been received in the lower court, and its ruling was not censured. [McKee v. Higbee, 180 Mo. 263.]

The same course was taken by the trial court and accepted as correct in Haworth v. Haworth, 123 Mo. App. 303. [See, also, Huyck’s Estate, 49 Misc. 391, 99 N. Y. Supp. 502; Moore v. Bryant, 10 Tex. Civ. App. 131; Coombs v. Cook, 35 Okla. 326; Kennedy v. Borah, 226 Ill. 243.]

The terms of a lost deed or contract to adopt may be proved, like .any other lost document, by secondary evidence.

(b) “When it is sought to establish¡an oral contract to adopt, the courts, as said above, require a high degree of certainty in the proof, and the evidence as to the terms and character of the contract, must be cogent, clear and convincing. This rule has been declared in many eases, most of which are cited in Kinney v. Murray, 170 Mo. 674, 700, et seq.

In a later case, wherein the rule was thus declared and supported by quotations from several opinions of the court, including that in Kinney v. Murray, the question arose of whether the same rule obtained when the supposed contract had been put into writing and the writing had been lost. It was alleged that a Mrs. Sisson had written a letter to T. W. Anderson, the father of a girl whom Mrs. Sisson proposed in the letter to adopt. The letter had been lost, but there was strong evidence that it had be.en written by Mrs. Sisson and received by Anderson, part of the evidence being the reply of Anderson to the letter, wherein he accepted the proposition of Mrs. Sisson. That the contract had been made was also supported by the testimony of witnesses that Mrs. Sisson had frequently stated her intention to give her property to the girl after the girl had gone to live with her. The court said: “The letter by Mrs. Sisson making the proposition, so it is contended, was destroyed; hence, so far as the proposition by Mrs. Sisson is concerned, which is a vital part of the contract, the proof of it must rest upon parol testimony. The proposition, as made- by this letter, the letter not being in existence, stands upon the same basis as though the proposition had never been r,educed to writing, and as to the terms of the proposition requires the same clear and convincing proof as is necessary to the establishment of a parol contract.” [McKee v. Higbee, 180 Mo. l. c. 296.]

Concerning the question of how fully the contents of a lost document must be proved, in order to give effect to it, a treatise of merit says: “That for documents having in themselves a legal effect — such as deeds and contracts — all the material parts must be established by the testimony to contents. It would be imprudent to act judicially upon a part of a document whose material effect must depend equally upon .other and missing parts. ^ This practice, doubtless, would sometimes leave honest rights unenforceable -.because their tenor is unknown; but this contingency is preferable to the constant and greater risk in the other direction. ” The learned author then says verbal precision in proving] the contents is not required; “the substance of the material parts, but by no means the words themselves (except, of course, so far as the witness is able), is tire rational limit of the law’s requirement.” [3 Wig-more, Evidence, sec. 2105, pp. 2845, 2846.] In another passage the same writer says: “By the principle of completeness (post Section 2105) .it is regarded as unsafe to listen to any testimony of the contents of a lost Writing unless that testimony purports to reproduce at least the substance of the contents; and some courts even require the fairly complete details of its contents.” [Ibid., sec. 1957, p. 2602.] Said Marshall, C. J., “The substance of the agreement ought to be proven satisfactorily” (Tayloe v. Riggs, 1 Pet. ’591, 600). Another court, in stating what must be shown of a lost deed, said: “The property conveyed, the estate created, the conditions annexed, the signing, sealing and delivery, are required to be proved with reasonable certainty, by witnesses who can testify clearly to its tenor and contents.” [Thompson v. Thompson, 9 Ind. 323, 334.]

In a case where the execution of a lost promissory note was to he established by secondary evidence; the court said that proof of the contents of a lost paper ought to be the best the party can procure, “and, at all events, such as to leave no reasonable doubt as to the substantial parts of the paper.” [Renner v. Bank of Columbia, 9 Wheat. (U. S.) 581, 597.]

Where an attorney had mislaid a lettemhis clients had turned over to him, he produced at the trial a copy he had made and offered to testify the copy was true and correct and that there was nothing in the original relative to the business in controversy which was not contained in the copy. This testimony and the copy were rejected, and the Supreme Court sustained the ruling, professing at the same time implicit confidence in the judgment and character of the witness. The evidence was incompetent because the witness did not pretend “the extract offered, or his own recollection, embraced even the substance of the whole letter;” and though he was willing to testify the rest of the letter related in no way to any matter in the case (wherefore it was in-; sisted the material contents • of the original were shown in the copy) the Supreme Court said the decisive answer was this: the court had only the opinion of the witness that all relevant parts of the original were' in the copy; adding this remark: “There can seldom be a sound construction of written evidence without adverting to all the parts and considering the operation of the whole.” [Dennis v. Barber, 6 S. & R. 420, 425.]

A later Pennsylvania case called for a ruling upon the sufficiency of evidence introduced to prove the contents of a lost letter and a lost power of attorney. A witness had testified he knew the party claiming to be attorney in fact had a power of attorney, but the witness could not state its contents; and the court said, “It is very evident therefore that there was no proof of any authority to execute the agreement,” etc. Regarding the proof of what was in the lost letter, the proof consisting of the testimony of the wife of the man to whom it was written, the opinion; after pointing ont other deficiencies in her testimony, said: “In addition to this she does not profess to 'give the whole contents, and does not even state that this portion of the letter was all that related to the subject of the timber. On this point her testimony falls far short of- the evidence of the contents offered in Dennis v. Barber, 6. S. & R. 420; a case which rules this in respect to the proof of contents.” [Coxe v. England, 65 Pa. 212, 222.]

There have been decisions, which, like the one in McKee v. Higbee, supra, were rendered in cases where lost instruments or proceedings to adopt were to be proved by secondary evidence, and which shed light on what degree of cogency of proof is exacted. In a Missouri case the execution of the deed of adoption was held to have been established orally, the recorder of deeds and his deputy having both testified they had seen and examined the record of it and given the .contents. This evidence, along with testimony of statements made by. the adopting - father that he had adopted the child and he was his son, were held to satisfy the rule that convincing evidence must be produced, and to support the finding of the trial court that a deed of adoption had been executed and recorded. [Haworth v. Haworth, 123 Mo. App. 303.]

In an Illinois case the adopting had been by a proceeding in court, in accordance with the laws of that State; and the records having been burned, the points to be decided were whether their contents could be proved orally and whether the evidence put in for that purpose sufficed to show jurisdiction of the proceeding to adopt was obtained by the county court. The competency of the oral testimony was ruled, and then the court considered the adequacy of it to show the' petition for the adoption gave the court jurisdiction. The attorney, who prepared the petition,- testified fully and in detail regarding its contents, as will be seen by read-iug the opinion, and the court said, “The testimony in this case was clear that the petition contained all that was required by the statutes, unless it be the age of the appellee.” Inasmuch as the evidence showed the child was a minor when adopted, and as thirty-eight years had elapsed since, the court said it would be- too technical to hold the statute required the exact age to be given under such circumstances. [Kennedy v. Borah, 226 Ill. 243, l. c. 250 to 253.]

The matter came up for a ruling in Oklahoma, where, too, adoptions are judicial. The court records had been burned, and jthe proof was oral. The sheriff of the county testified he was in court one day, when Isabel O’Bannon, the alleged adopting parent, handed to him a petition for the adoption of the claimant to the lands in litigation, as the petitioner’s child; that he read the petition after it had been spread on the records of the court, and later read the order of adoption upon the record. He could not remember all the contents of the order, but remembered that it said “the adoption of such child to be accepted as the adopted child of Mrs. O’Bannon. The. proceeding was complete of the adoption of this child, Betsy Durant, to ¡¡Mrs. O’Bannon.” This was held sufficient to establish the existence and contents of the record of adoption. [Coombs v. Cook, 35 Okla. 326, 330 to 332.] .

At this point it is well to recall that a deed of adoption is not a document or record of uniform contents, either prescribed'by a statute or by immemorial practice, but may contain whatever conditions and consideration the parties choose to insert. As to this distinction some observations of Folger, J., in a case where the-contents of a lost judgment roll on which a judgment, by confession had been rendered, were to be proved, are pertinent: “I am aware that, in cases where the lost paper is not to be put in a class, for-which the requirements of some statute has prescribed the substantial form and contents, there may be no satisfactory proof of contents, save by one who-has possessed himself of the whole of tlie contents and is able to give them forth generally and substantially (Sizer v. Burt, 4 Denio, 428). Bnt in a case where the lost paper is of a kind which is usually drawn up in accordance with a statute, and usually follows a form devised for that kind of instrument — so much so that the form is put into type, and printed copies are furnished to attorneys — we may from the circumstances infer that the attorneys who had the drafting of it would not have made any but a paper in legal form and substance, and that thos.e who had to base their official action upon it would not have proceeded by virtue of it had it not, to their judgment and scrutiny, been agreeable in its contents to the requirements of the statutes.” [Mandeville v. Reynolds, 68 N. Y. 528, 536.]

That an adoption document is not an instrument of such well’ known nature and common use as to authorize the inference of its contents from evidence to show it was executed, was ruled in McCann’s Estate, 9 Pa. Dist. 184. In that case the document had been burned; but a witness testified she had seen the lost adoption paper prepared by an official and signed by the adopting parent, and that she, as she mother of the child to be adopted, had signed it; that the officer had asked her if she would give up the child and she answered in the affirmative; that the other party agreed to raise her, and treat her as their own child, give her schooling and education, and she should be called Minnie McCann; that the paper contained the day and date of its execution and a red seal was put on it. Said evidence, fortified by. proof of declarations by the decedent and his wife regarding the adoption, was held insufficient to establish that a deed of adoption had been made. ,

We are treating this appeal as one taken from a finding that a statutory adoption actually occurred; hence, the question is not whether the evidence convinces us of that fact, as it is in equity cases for the specific performance of a contract to adopt. It is rather whether there is .evidence sufficient to uphold a finding of the fact by the circuit court. We point out that no witne'ss testified to having seen either a deed of adoption signed and acknowledged by Mr. and Mrs. N.ewsom, or the record of one. No one testified that either of those persons ever stated they had executed snch a deed, though several witnesses téstified to statements by them that they, had adopted Jasper Gipson, but never saying how this had been done. If a deed was in fact made, not a trace of evidence regarding its contents-is in the record before us. It is noteworthy that Rev. Cagle in telling of the departure of Mrs. Newsom and others for Kennett one morning for the announced purpose of adopting Jasper, which Mrs. Newsom declared on her return, had been don.e, omits Mr. Newsom’s name in giving the names of all the members of the party. But Mrs. Newsom could execute a deed of adoption only toy joining with her husband in the execution. [1 Wagner’s Statutes, chap. 28, sec. 2.]

The only positive evidence going to show a deed had been made and recorded was the statement of the witness Dillender that Lum Owens told him a ¡deed was made, but the record of it had been destroyed when the court house burned. This testimony went in without objection and is to be considered, weak as it is, with reference to its completeness and adequacy upon the question of the contents of the deed. .Lum Owens did not tell Dillender that he (Lum) had ever seen the deed or the record of it; did not say whether or not it was signed and acknowledged by both Mr. .and Mrs. Newsom, and said nothing of its contents. The substance of the statement, so far as it relates to a deed, was this: “He said the deed of adoption was oh record until it got burned up.” Arahelle Newsom died in 1909, and if these plaintiffs were her heirs in consequence of the adoption of their father, they inherited their interest in the premises in controversy when she /died. Yet, until January. 17, 1917, this supposed interest was not asserted and for several years rent was paid ¡by one or both plaintiffs to Mrs. NeWsom’s son, O. J. Owens, for the portion of the land used by them. Mrs. Newsom was heard to declare iii Jasper’s hearing and without contradiction that she had not adopted him, hut was having as much trouble» as if she had. However, these facts are somewhat beside the mark, tide inquiry being whether the evidence about the supposed -lost deed sufficed to prove one was made and to show its contents completely enough to justify a finding that Jasper had been adopted by such an instrument as the statute required. The statute must be shown to have been strictly complied with, it being in derogation of the common law. [Sarazin v. Union Ry. Co., 153 Mo. 479, 485.]

Tested by the principles and rules announced in the authorities we have cited, and particularly in the case of McKee v. Higbee determined by this court, on evidence much more complete regarding the contents of the lost contract than we have in the present record, we must hold the evidence to prove the execution by Paddy and Arabelle Newsom of a deed adopting Jasper Gipson and the recording of it, was insufficient; further, that were the ruling upon that question the other way, manifestly the substantial contents of the deed were not proved with the completeness required by the law; were not proved at all, we may say.

Therefore the judgment will be reversed and the cause remanded.

It is so ordered and considered.

All concur.


source: Caselaw Access Project

author: BLAIR, P. J.

license: Public Domain

text:
    CHARLES C. MESTER, Appellant, v. BRECKINRIDGE JONES et al.
    Division One,
    December 30, 1920.
    1. FRAUD: Discovery: Limitations: Means of Discovery. Tlie presumption is that if a party affected by any fraudulent transaction or management might, with ordinary care and attention, have seasonably detected it, he seasonably had actual knowledge of it. Where the party defrauded had the means at hand to readily discover the fraud, and such means of information would have been used by a person of ordinary care in the transaction of his own business, he will he held, as a matter of law, to have had due notice of everything which a proper use of such means' would have disclosed, and cannot escape the saving clause of the Statute of Limitations which requires an action for relief grounded on fraud to he brought within five years, “the cause of action in such case to be deemed not to have accrued until the discovery by the aggrieved party of the facts constituting the frapd.”
    2.-: —--: -: Purchase of Bonds: Concealment: Original Misrepresentations. No force sufficient to prevent the running of the Statute of Limitations relating to the discovery of frauds can be allowed to misrepresentations concerning the assets and properties and possible profits of a corporation made by its promoters to a purchaser of its bonds, unless they were of a character designed and effective to operate after the fraud was perpetrated, so as to conceal the cause of action and prevent discovery; and the concealment .must be some affirmative act or representation, designed to prevent, and which does prevent, discovery of the cause of action.
    3.-:-:-: —.-: Concealment: Examination of Books. To prevent the bar of the Statute of Limitations on the ground that the facts constituting the fraud were not discovered within the five-year period, the circumstances of the discovery must be fully stated, and the delay must be shown to be consistent with requisite diligence. Where the purchaser of bonds was misled by false statements of the promoters of a corporation to the effect that it was the owner of a city franchise under which it was about to install 225,000 telephones and ultimately 750,000, that $17,000,000 of bonds were to be issued pursuant to contracts which would yield $5,000,000 for the company’s use, that sales of stock had been made or contracted to the amount of $41,303,000, and that there was this amount from this source as security for the bonds, allegations that said purchaser was not a stockholder and had no right to inspect the books of the company and that the books were so kept and manipulated that he could not have discovered the fraud even if he had had the right to inspect them, are not statements of facts which amount to concealment or of requisite diligence, for some of those things are not required to be shown by the company’s books.
    4.-: --■: -: -: City Franchise. Allegations that the promoters of a corporation, before plaintiff bought its bonds, had represented that it had a city franchise under which it was about to install 225,000 telephones and ultimately 750,000, whereas in fact it had bought an old burglar-alarm system franchise, reveal a source of information which no condition of the company’s books could conceal, for the existence or non-existence of the franchise, and whether or not construction oa, a large scale had teen begun before he bought its bonds, were things which almost casual inquiry would have discovered, and did not toll the Statute of Limitations.
    5. -: -•: -: Failure of Corporation: Report of Receiver. Mere failure of a corporation organized to acquire a city franchise and to construct and operate a large telephone system is not sufficient to put a purchaser of its bonds on notice that its representations that it had acquired such a franchise and that it had. immense assets to construct and operate the system were false; but when the company defaults in the payment of interest on the bonds and the mortgage securing them is foreclosed, a report of the referee showing a payment of only one and a half cents on the dollar of the secured indebtedness will reveal the fraud, if there was such, and if by an examination of that report he could ■ have uncovered immediately the worthless character of the franchise, the value of the corporation’s assets and the whole transaction, he must be held to have had knowledge of those things, and his failure to make the examination or to allege any reasonable excuse for not making it will not extend the five-year period for suing for fraudulent misrepresentation.
    Appeal from St. Louis City Circuit Court. — Hon. Vital W. Garesche, Judge.
    Affirmed.

      Goodbar &■ Tittmcm for appellant.
    (1). Section 1889, R. S. 1909, designates, among other actions,’ that “an action for relief on the ground of fraud” is barred in five years. The 5th subdivision reads: “fifth, an action for relief on the ground of fraud, the cause of action in such case to be deemed' not to have accrued, until the discovery by the aggrieved party, at any time within ten years, of the facts constituting the fraud.” The petition, from all the circumstances stated, alleges facts sufficient to bring the plaintiff within the .ten year exception to Section 1889. (a) The law does not require of one that he should suspect fraud. On the contrary, all transactions are presumptively honest. College v. Dockery, 241 Mo. 551, '553; Judd v. Walker, 215 Mo. 331; Snider v. McAtee, 165 Mo. App. 270'; Kelley v. Peeples, 192 Mo. App. 439. (b) It is not necessary for a party to plead, that be used due diligence to discover fraud, -because if be had no reason to suspect fraud, be was not called upon to investigate. Judd v. Walker, 215 Mo. 332; Robertson v. Smith, 204 S. W. 413; College v. Dockery, 241 Mo. 558; Higgins v. Crouse, 147 N. T. 411; Baker v. Lever, 67 N. Y. 308, 309. (c) Mere want of diligence without knowledge of the fraud is not sufficient to deprive a party of bis legal right to rescind a fraudulent contract. Baker v. Lever, 67 N. Y. 309. (d) The law requires only that one shall exercise the care employed by an ordinarily prudent business man, and in no sense imposes the duty to exercise extraordinary diligence in investigating whether or not he has been defrauded. Snider v. McAtee, 165 Mo. App. 270; Kelley v. Peeples, 192 Mo. App-. 439; Brown v. Railroad, 187 Mo. App. Ill; Baker v. Lever, 67 N. Y. 308, 309. (e) The known fact of a failure of an enterprise and a subsequent foreclosure is not sufficient to raise a presumption of fraud and so put a party upon notice. Higgins v. Crouse, 147 N. Y. 411. (f) “A man to whom a particular distinct representation has been made is entitled to rely on the representation and need not make any further inquiry, although there are circumstances in the case, from which an inference inconsistent with the representations might be drawn.” Judd v. Walker, 215 Mo. 330-332, quoting Kerr on Fraud (2 Ed.), 40, 41, and Bigelow on Frauds, 528-525; Stonemets v. Head, 248 Mo. 262'; Kottrill v. Krum, 100 Mo. 404; McGhee v. Bell, 170 Mo. 135; Leicher v. Kenney, 98 Mo. App. 405; Snider v. McAtee, 165 Mo. App. 270. (g) Only in those cases where a party owed a duty to investigate and did not, or where he had' knowledge of facts sufficient to imply fraud will the law charge him with knowledge of the fraud, and in such cases, only, is it necessary to allege due diligence to bring one within the exception to the statute. Such is not the state of facts in the case at bar. Shelby County y. Bragg, 135 Mo. 291; State ex rel. v. Yates, 231 Mo. 276; Callan v. Callan, 175 Mo. 346. (2:) Fraud is a subject of original equity jurisdiction and, in matters of fraud law and equity have concurrent jurisdiction and if the right asserted is a subject of original equity jurisdiction, the court will entertain it even though there may be a remedy at law. Nelson v. Betts, 21 Mo. App. 231; Steward 'v. Caldwell, 54 Mo. 539 ; Baldwin y. Davidson, 139 Mo. 126; Lime & Cement Co. v. Bank, 158 Mo. 279'; Van Raalte v. Epstein, 202 Mo. 195; Hanson-v. Neal, 215 Mo. 284. “In cases of fraud and deceit the plaintiff has two remedies: he can stand upon his contract and sue for the damages growing out of the fraud and deceit practiced upon him in the procurement of the contract, or he can elect to rescind the contract and sue to have the same canceled and for naught held.” Ryan v. Miller, 236 Mo. 508; Brown v. Lead & Zinc Mining Co., 231 Mo. 172, 175; Hart v. Handlin, 43 Mo. 175; Gould v. Cayuga Nat. Bank, 86' N. Y.. 83; Bosley v. N. M. Co. et al, 123 N. Y. 555; Vail v. Reynolds, 118 N. Y. 302. Therefore, this action, based upon fraud, for a rescission of a sale of certain bonds and the restoration to plaintiff of the considera,tion paid for said bonds was properly brought in equity. (3) In rescission the plaintiff need only malee such a restoration as is reasonably possible under the circumstances. Sandage v. Studebaker Co., 142 Ind. 154; Sales, 35 Cyc. p. 146; Benjamin on Sales (5 Ed.), pp. 442-3-4; Gould v. Cayuga Bank, 86 N. Y. 81; Doan v. Lockwood, 115 Ill. 496; McMiehael v. Kilmer, 76 N. Y. 46. And when the subject-matter has become worthless he need make no'tender. “The law, does not require an idle ceremony.” Fitz v. Bynum, 55 Cal. 461; Baker v. Lever, 67 N. Y. 308; Gould v. Cayuga Bank, 86 N. Y. 81. In the case at bar plaintiff tenders back exactly what he received — a worthless piece of paper.

      Jour dam,, Bassieur & Pierce for respondents.
    (1) Tile petition sliows on its face that the canse of action which accrued in 1906, when the bonds were purchased, was barred by the Statute of Limitations of this State requiring suits of this character to he brought within five years. Sec. 1889, R. S. 1909; Shelby County v. Bragg, 136 Mo. 300 ; Wood v. Carpenter, 101 XT. S. ‘141; ITeisler v. Glymer, 179 Mo. A,pp. 120;; Callan v. Callan, 175 Mo. 361; State ex rel. v. Yates, 231 Mo. 276; Johnson v. United Railways, 243 Mo. 278; Higgins v. Crouse, 147 N. Y. 411; Seymour v. Seymour, 28 App. Div. (N. Y.) 495; 29 Cyc. 1114-15; St. Joseph v. Wyatt, 274 Mo. 575; Putnam County v. Johnson, 259 Mo. 73; College v.. Dockery, 241 Mo. 553. (2) A suit in equity does not lie on behalf of a purchaser to set aside for fraud an executed sale of a chattel where an adequate remedy at law may be had. Levering v. Schnell, 78 Mo. 170; Stalter v. S'talter, 151 Mo. App. 66; Pocoke v. Peterson, 256 Mo. 518; Williston on Sales, sec. 647; Newham v. May, 33 Price, 749; Bosley v. N. M. Co., 123 N. Y. 550. (3) Appellant cannot maintain an action for equitable rescission, because the right to rescind a contract for fraud must be exercised promptly upbn discovery; otherwise the party complaining;will be deemed to have affirmed the contract and to have elected to stand on his' right to sue for damages.' ITallahan v. Webber, 7 App. Div. (N. Y.) 122; Shifter v. Dietz, 83 N. Y. 300; Pryor v. Poster, 30 N. Y. 171; Cobb v. Hatfield, 46 N. Y. 533; Mayo v. Knowlton, 134 N. Y. 250; Bruce v. Davenport, 1 Abb. Ct. App. Dec. 233, 5 Albb. Prac. (N. S.) 185; Zimmele v. American Plaster Co., 1 App. Div. (N. Y.) 327; Trott v. Schmitt, 119 App. Div. (N. Y.) 474; Gamble v. Tripp, 99 Cal. 223; Patent • Title Co. v. Stratton, 89 Fed. 174; 'Houston v. Cook, 153 Pa. St. 43. (4) The petition shows on its face that the bonds sought to be tendered back are no longer in existence, but were extinguished 'by foreclosure 'proceedings and merged in a general deficiency judgment in-favor of all the outstanding bondholders as creditors. Cowgill v. ■ Robbersou, 75 Mo. App. 419; Wavman v. Cochrane, 35 Ill. 151.
   BLAIR, P. J.

This is an appeal from a judgment entered after a demurrer had been sustained to the petition and appellant had refusedjto plead further. The petition seeks rescission of a contract of purchase of' eleven bonds of the United States Independent Telephone Company into which it is alleged appellant was induced to enter by false representations of persons alleged to have been acting as agents and representatives of respondents and others ’who are designated as “The Promoters.” The petition-is long. In order that the questions presented may be understood it will be necessary to incorporate a summary of its allegations.

It is alleged that the United States Independent Telephone Company (hereinafter referred to as the Independent Company) was a New Jersey corporation, which, in September, 1905, increased its capital stock to $50,000,000, divided into shares of $100 each; that, October 2, 2905, it authorized the issuance of $25,000,000 five-per-cent, collateral/trust gold bonds to mature in twenty years, $17,000,000 of which were authorized to be issued immediately; that respondents and others named were the promoters and 'Organizers of the Independent Company; that Thos. W. Finucane was its president. and Albert O. -F'erris was the paid agent of the promoters to solicit and receive subcriptions for the bonds; that Ferner was vice-president and cashier of the Alliance Bank of Rochester, and others of the promoters were directors thereof; that the bank was employed as the agent for the issuance of bonds, receipt of moneys therefor and in other ways,, and that all the promoters were known to plaintiff as men of high financial standing, and that their connection with the matter induced full credence in the representations made; that- a prospectus was issued wherein it was falsely represented that $17,000,000 of bonds bad been sold or underwritten, and that the Independent Company would have $5,000,-000 in its treasury for corporate uses as a result thereof; that the Independent Company had acquired from the City of New York.a valid franchise for the construction and operation of an independent telephone plant in that city; that the Independent Company had acquired the stock of a telephone manufacturing company, and it was falsely represented that this company was in prosperous condition and had been paying large dividends; that the report of accountants respecting the manufacturing company’s condition was suppressed or' misrepresented;-that it was falsely represented that $41,-303,000 of ,the stock of the Independent Company had been issued, and that $17,000,000 of the Independent 'Company’s bonds had been sold on a cash or property basis; that. $8,000,000 of the Independent Company’s bonds were to be held in escrow to acquire other properties ; that important facts were concealed; that these representations were misleading and false and made to deceive appellant and did mislead and deceive him and induce ,him to purchase, on December 13, 1905, eleven of the $1,000 bonds of the Independent Company; that he paid $11,000 therefor and received eleven bonds and a voting trust certificate for $4400 representing stock in the Independent Company of the par .value of $4400.

It is further alleged that before the mortgage to secure the $25,000,000 in bonds was/.executed it was known to respondents that only $3,000,000 of the bonds had been sold and only $2,500,000 realized ther.efrom, and known to the respondents that the enterprise could not succeed because of failure to secure sufficient working capital, but that this was concealed from appellant, and his money was accepted in payment for the bonds- for which he had subscribed; that the standing and reputation of respondents and their counsel induced confidence and belief in all the representations made.

Plaintiff also alleges that he never was a stockholder in the Independent Company, and had no right to inspect its books, and that the books were so kept that he would not have discovered the fraud even had he examined the hooks.

“Plaintiff states that in 1913, through letters and conversations with other persons, he first suspected that he had been deceived and defrauded by the misrepresentations of said promoters as herein set out;” that because of the magnitude and complexity of the matters involved and because the Independent Company had been dissolved and its officers and directors were widely scattered, plaintiff had great difficulty in discovering the facts and the truth; that as soon as he “had become convinced” that he had be.en defrauded, plaintiff “employed counsel to negotiate a settlement of his claim; that before and ever since the discovery of the fraud, the bonds and voting trust certificate have been worthless, but plaintiff has been ready and willing, and is now so, and now offers to deliver back the bonds and voting trust certificate, together with installments of interest received, together with other payments received and interest thereon. That, appellant received semi-annual interest payments of $275 each on April 1, 1906, and October 1, 1906, and “thereafter and on or about the 11th day of March, 1908, there was paid on each of the bonds so issued by' Henry W. Conklin, Referee, the sum of $15.16 as a pro rata share of the net proceeds of a sale under the foreclosure of an indenture or mortgage which secured, or purported to secure, the said bonds; and, thereafter, on April 24, 1916, plaintiff accepted the sum of $1375 from the estate of Busch as consideration for a covenant not to sue on his claim against that estate.

The petition further alleges that “by reason of the premises the plaintiff desires an equitable rescission of the aforesaid contract between plaintiff and the promoters of the syndicate because of the fraud and deceit practiced by them on this plaintiff, and an accounting with, respect to all moneys received by them or any of them from this plaintiff, and the payment to plaintiff of any amount found due plaintiff upon such accounting, and plaintiff brings this action because plaintiff has no remedy at law.”

(1) That the court decree that the subscription for and sale of the bonds and certificate to plaintiff be rescinded ’ and respondents be required to take them back and “restore, to plaintiff the consideration” paid by plaintiff therefor.

(2) That respondents be required to account to plaintiff for the moneys received from him, less the interest payments received by him April 1 and October 1, 1906, and the payment made plaintiff by the referee in the foreclosure proceedings in March, 1908, and less, also, the sum received from the Busch estate; and

(3) For such other and further relief as seems just.

Some further details of allegations above epitomized appear in the opinion.

The grounds of demurrer were:

(1) That the petition did not state facts sufficient to constitute a cause of action; (2) that the petition shows on its face that the alleged cause of action is barred by the five-years Statute of Limitation; (3) because an action in equity does not lie to set aside for fraud an executed sale of a chattel where an adequate remedy at law exists; (4) because the petition does not properly .and affirmatively show that this action was commenced promptly after discovery of the alleged fraud, and the right to rescind the contract for fraud must be executed promptly upon the discovery of fraud, otherwise the party complaining of the fraud will be deemed to have affirmed the contract and to have elected to stand on his right to sue for damages; (5) because the petition shows a settlement with a joint tort-feasor and, therefore, a release of all; (6) because the petition shows the bonds sought to be tendered back are no longer in existence, but. had been extinguished bv foreclosure proceedings and merged in a deficiency judgment in favor of all bond-holders and creditors.

The demurrer was sustained, the judgment was entered, and this appeal follows.

Appellant contends (1) the facts stated show the case falls within the exception to the fifth clause of the five-year section of the Statute of Limitations (Sec. 1889, R. S. 1909); (2) the suit is properly brought in equity; -(3) laches does not inhere in the facts stated; (4) the covenant not to sue the Busch estate does not bar this suit; and (5) that there has been no failure to tender which bars the suit.

In his brief appellent confines himself solely to an effort to show that the allegations of the petition make it good as against the several grounds of respondents’ demurrer.

Appellant’s first endeavor is to show that the allegations of the .petition are sufficient, as made, to bring the case within the exception to the fifth clause of Section 1889, Revised Statutes 1909. The applicable part of this section, which prescribes the time within which certain actions shall be brought, reads: “Within five years: . . . fifth, an action for relief on the ground of fraud, the cause of action in. such case to be deemed not to have accrued until the discovery by the aggrieved party, at any time within ten years, of the facts constituting the fraud.”

Appellant does not contend that the exception to the statute becomes applicable merely because he did not discover the fraud or all the facts constituting it, but concedes that “he who has at his disposal the means of knowledge, is held to know” and “that where there is a duty to use diligence, those facts which diligence will discover are presumed to be known under the law of notice,” as stated in cases he cites. He does not deny that his cause of action accrued if, at any time, “by proper diligence” as an ordinarily prudent man, he, under the circumstances, should have discovered” the fraud (State ex rel. v, Yates, 231 Mo. l. c. 290); nor that if lie Rad the means of knowledge he must he held, in this cas.e, to have had the knowledge itself.

“The presumption is, that if the party affected by any fraudulent transaction or management might, with ordinary care and attention, have seasonably detected it, he seasonably had actual knowledge of it; and the plea of the statute is not answered by the fact, that the action is founded on a simple breach of trust, or upon what is but a bare violation of an engagement, for allegations upon such grounds might be made in all eases.” [Angell on Limitations (6 Ed.), sec. 187.] Under a statute analogous to ours it was held that, within its meaning, knowledge of facts constituting the fraud would be imputed in case the circumstances were such as to suggest to a person of ordinary intelligence the probability that he has been defrauded, and he omits to make inquiry which would have developed the truth. [Higgins v. Crouse, 147 N. Y. 411; 2 Wood on Limitations (4 Ed.), sec. 276b (11).] In the following section (276b (12) ) it is said: “Where a party defrauded had the means at hand to readily discover the fraud, and such means of information would have been used by a person of ordinary care in the transaction of Ms own business, he will be held, as a matter of law, to have had due notice of everything which a proper use of such means would have disclosed.”

To support his argument that the allegations iii the petition are sufficient to bring the case within the exception in the fifth clause of Section 1889, appellant calls-attention to the allegations (1) that he was never a stockholder and had no right to inspect the books of the corporation mentioned in the petition; (2) that the books and records of these corporations were so “kept and manipulated” by respondents and their associates that appellant “could not by the exercise of due diligence discover the fraudulent acts” pleaded, or the condition of the company, or that “said condition was . . . due to the fraudulent acts or misrepresentations of said promoters rather than to general busi-n.ess depression;” (3) that appellant relied upon the misrepresentations because of the high standing', known to him, of those making them; and (4) the allegation concerning the information received by him in 1913 and his actions pursuant thereto.

It is argued, first, that by reason of the misrepresentations whereby the purchase of the bonds is alleged to have been induced, appellant was excused from making any subsequent inquiry. In support of this certain cases are cited (Judd v. Walker, 215 Mo. 331; Kelley v. Peeples, 192 Mo. App. 435; Snider v. McAtee, 165 Mo. App. 260; Robertson v. Smith, 204 S. W. 413; Baker v. Lever, 67 N. Y. 304) in which it was held, in effect, that when one has acted to his hurt upon the faith of misrepresentations of fact a,nd sues for damages, it ordinarily does not lie in a defendant’s-mouth to say the plaintiff was too gullible and should not have believed what defendant told him. No question of the Statute of Limitations was in those cases. They have little to do with the question here. In College v. Dockery, 241 Mo. l. c. 551, et seq., are expressions which might, seem to support appellant’s present contention if it did not appear from a reading of the whole decision that the question of pleading, concerning which the remarks mentioned were made, was not in the case and, also, that a fiduciary relation existed between the plaintiff and Hilbert, upon whose fraud the suit was founded. [State ex rel. v. Yates, supra, l. c. 291. and cases cited.] The rule above quoted from Angelí would seem to deny any force to the,original misrepresentations unless they were of a character designed and effective to operate after the fraud wus perpetrated so as to conceal the cause oP action and prevent discovery. [Caldwell v. Ulsh, 103 N. E. 879.] This case is cited in a note to Section 276f (2) in Wood on Limitations. In that section it is pointed out that the concealment must be “some affirmative act or representation, designed to prevent, and which does prevent, the discovery of the cause of action. ConceaL ment of a cause of action must consist of some trick or artifice preventing inquiry, or calculated to binder a discovery of the cause of action by the use of ordinary diligence, and mere silence is insufficient. There must be something actually said or done which is directly intended to prevent discovery.” This doctrine has been approved by this court in previous decisions. [Callan v. Callan, 175 Mo. l. c. 361; State ex rel. v. Yates, supra, l. c. 291; Johnson v. United Rys., 243 Mo. l. c. 299.] Tested by these principles the allegations of misrepresentations inducing appellant to purchase the bonds involved have no efficacy to bring his case within the provision upon which he relies.

Other allegations are that appellant was not a stockholder and had no right to inspect the hooks of the Independent Company, and that the books were so “kept and manipulated” that he could not have discovered the fraud even if he had had a right to inspect them. It is not deemed necessary to go into the question whether these allegations are pleaded with sufficient particularity to justify appellant ascribing to them the weight he does, nor into the further question whether they furnish a sufficient excuse for not requesting the privilege of examination, and alleging here a denial, if any, or setting out the actual facts constituting the “manipulations” of the 'books, if the privilege of examination had been granted. Let it be assumed, for the purpose of this case, that these allegations are a sufficient answer to any effort to charge appellant with knowledge, in the first instance, of what the books of the Independent Company showed.

The petition also shows that appellant’s suspicions were aroused in 1913 “by letters and conversations with other persons” but it does not allege the sources or the particulars of the discovery, nor why the knowledge then received from sources other than the books of the Independent Company had not been acquired before. In the Yates case, already cited, is approved a holding that “the circumstances of the discovery must be fully stated and proved, and the delay which has occurred must be shown, to be consistent with the requisite diligence.” Equity searches the pleader’s conscience with respect to his discovery. There is no allegation that there was any act of concealment of respondents which was designed to or did prevent an earlier discovery from the source from which it came in 1913.

Appellant- alleges some of the chief representations were that the Independent Company had acquired a franchise from the City of New York under which it was on the point of installing a plant with a capacity of 225,000 telephones and an ultimate capacity of 750,000 telephones; that $17,000,000 of bonds were to be issued pursuant to contracts such that it would yield a fund of $5,000,000 for the company’s use in addition to property acquired therefor which would furnish part of the security for the mortgage; that sales of Independent Company stock, for money or property, had been made or contracted to an aggregate of $41,303,000; that there was this amount from this source as security for the bonds.

If, in fact, as alleged, no such franchise had ever been purchased or had ever existed but a franchise covering but a limited district and formerly used as alleged by a burglar alarm company with a capital stock of $5,000 had be.en indirectly acquired; that this franchise was transferred to the Independent Company for stocks and bonds of the value of $39,000,000; that appellant understood this was a general franchise acquired from New York City and of great value, as he alleges, while in fact it was' merely an old burglar alarm system franchise and not valid for telephone purposes; and if he understood that the Independent Company was immediately to begin to construct under this franchise a telephone system on a large scale, and that the franchise was of “large value to it and a valuable security for the bonds offered;” and if no construction could be done under the franchise without a permit from the City of New York and no such permit had been obtained — all of which is alleged — then it seems clear there was a source of information, which no condition of the hooks of the Independent Company could conceal and which it is not alleged respondents did any act or thing tending to conceal. The existence of the franchise under which the company was to construct and operate its plant or the non-existence of it was a thing almost casual inquiry would have discovered; likewise with respect tq the permit from the city necessary to make the franchise available, and likewise the fact whether or not the large construction had been begun at all on a scale as represented. They were vital facts and were open to discovery by appellant at any time. Further, though the company defaulted the interest April 1, 1907, and when foreclosure was had under the mortgage securing the bonds, resulting in the payment, by the referee of one and one-half cents on the dollar on the secured indebtedness, and an amount equal to about six-tenths of one cent on the dollar on the amount appellant alleges he was deceived into believing was at the disposal of the company in the fall of 1905, appellant does not include in his petition any explanation of his failure to examine the referee’s report and discover-how far, and why, the property sold fell short of the value he says the property of the company was represented to -have had when he bought his bonds. He insists the mere failure of the venture was not sufficient to put him on notice and cites the case of Higgins v. Crouse, 147 N. Y. 411. The principle of that case is inapplicable to this. It does not question the general rule, but proceeds under it. In that case it appeared Higgins had bought oil stock. In was represented to him that an oil company had bought a farm and was putting down wells with every prospect of success. In fact the land had already been prospected and found barren, and the rigs were being moved off at the time. The court points out that what plaintiff thought he bought was a “chance of large profit” while, in fact, he was merely saddled with a loss already certain; that in the natur.e of the transaction plaintiff must have anticipated failure and complete loss if oil was not found. In that case the venture was highly and merely speculative, and a total failure meant to Higgins only that oil had not been found, a contingency which he had in view when he bought. In this case the venture is not a speculation on the presence of a substance hidden in the earth, but, if plaintiff believed what he says he believed, the problem concerned the practical disappearance in a comparatively few months of tens of millons of dollars worth of tangible and intangible property and money, securing a mortgage. We think, plaintiff’s authorities do not justify his inaction after his admitted discovery of the utter worthlessness of the security upon which he says he invested his money. He should have made inquiry. That would have led him to the referee’s report for the property sold and to the existence of the franchise and permit and the great plant which he alleges it was represented to him was straightway to be constructed under that franchise. He could have uncovered immediately the whole transaction. No reason for a failure to do these things appears in the petition.

We have, as we must on demurrer, taken as facts all allegations of fact, without regard to their actual truth, and have considered the case on the theory on which it has been presented and, doubtless, was presented in the trial court.

There are also other grounds of demurrer, some of which have been upheld in a like case involving the same transaction, in an unreported decision of the Supreme Court of New York, which is before us, and which was affirmed by the Court of Appeals. These questions it is unnecessary to decide in view of the conclusion already reached. The judgment is affirmed.

All concur.