source: Caselaw Access Project

author: GANTT, J.

license: Public Domain

text:
    MILLER, Appellant, v. BAYLESS et al.
    Division Two,
    March 6, 1906.
    1. WARRANTY DEED: General and Special Covenants: Restrictions. The statutory covenants raised by the words “grant, bargain and sell” when used in a conveyance of land, are restricted in their scope by an express covenant of special warranty, if the latter makes direct reference to the former covenants, or is coupled with them in such a way as to modify their ordinary effect.
    2. -: -: -: Outstanding Title. A warranty deed recited that the grantors “do by these presents grant, bargain and sell, convey and confirm unto the party of the second part, his heirs and assigns,” certain lands, and in the habendum clause they covenanted that “the said premises are free and clear of any incumbrances done by them, and it is expressly understood in this conveyance and in the covenants herein that the grantors will warrant and defend the title to said premises unto the daid second party and unto his heirs and assigns forever against the lawful claims and demands of themselves, their heirs and those through whom they claim.” Held, first, that the covenant of warranty was a special and not a general warranty, and bound the grantors to warrant and defend the title against the claims and demands only of themselves, their heirs and those through whom they claim; and the grantee, having in his petition charged his loss of the premises to a superior outstanding title, cannot recover for a breach of warranty; second, the words in the habendum that “it is expressly understood in this conveyance and in the covenants herein” must be held to be a restriction upon the general warranty implied in the words “grant, bargain and sell,” and to limit those words to refer to “the lawful claims of the grantors, their heirs and those through whom they claim,” and not as a warranty against the claims of those who claim under an outstanding title.
    Transferred from St. Lonis Court of Appeals.
    Affirmed.

      Echo. J. White for appellant.
    (1) The petition declares both upon the covenant of seizin and that of general warranty, and the breach alleged shows a violation of both covenants. Allen v. Kennedy, 91 Mo. 328. (2) Although more specific in its allegations and changed to meet the different state of facts declared upon, the petition is in substantially the form set out in White v. Stevens, 13 Mo. App. 240, which was held to state a good cause of action, by this court. (3) The line of cases relied upon by respondents are predicated upon the common law idea that a chose in action is not assignable ; that an action of covenant does not accrue to an assignee without a possession of the land covenanted, or something to which the covenant can be tacked onto, to carry it to the assignee. Under the practice in this State now, a covenant of seizin, as well as a covenant of warranty, runs with the land; is transmissible, without words of special assignment, and inures to the benefit of a subsequent grantee of the premises warranted. Langenberg v. Dry Goods Co., 74 Mo. App. 12; Loring v. Groomer, 142 Mo. 1; Egan v. Martin, 71 Mo. App. 60; Coleman v. Clark, 80 Mo. App. 339; Tracy v. Greffet, 54 Mo. App. 562. (4) Clearly, an inability to get into possession of premises conveyed, is the same as an actual eviction and a judgment in favor of the party in possession (such as was pleaded here), has the same force and effect as one of eviction. Adkins v. Tomlinson, 121 Mo. 487; Blondeau v. Sheridan, 81 Mo. 545, 47 Mo. App. 460. (5) “"Where a covenant of warranty is violated by a decree declaring title in another, the cause of action on the covenant only accrues, and limitation commences to run, at the time of the rendition of the decree.” Foshay v. Shafer (Iowa), 89' N. "W. 1106. (6) Neither possession nor title is such a breach of a covenant of seizin as can be enforced by a grantee long after the execution of the covenant. Adkins v. Tomlin-son, 121 Mo. 487.

      Dams & Steele for respondents.
    (1) The petition declares only on the covenant of seizin, which is a personal covenant; it is in the present tense, and if broken at all it is broken at the moment of of its creation, and it is immediately converted into a mere chose in action, which is incapable of running with the land; the breach extinguishes the covenant. Chambers’ Admr. v. Smith’s Admr., 23 Mo. 178. Covenant of seizin and right to convey is a genera] covenant that the grantor is lawfully seized, and had a right to convey at the time of the conveyance. If the grantor is not then possessed of the legal title, and is not in possession of the premises, the covenant is broken as soon as made, and the grantee, and no one else, may at once bring an action for the breach. Tiedeman, Real Prop., s,ee. 850, and cases.,cited under note 4; 3 "Washburn, Real Property (4 Ed.), 457; "White v. Stevens, 13 Mo. App. 246. (2) The position of appellant that the petition declares upon both covenant of seizin and general warranty, if true, places him in no better position for it doesnotthen state a cause of action. Covenants of warranty and quiet enjoyment relate to the possession and there must be an eviction to constitute a breach of either. Unless there has been an eviction of the grantee there is no breach of either the covenant of warranty or for quiet enjoyment. 8 Am. and Eng. Ency. Law (2 Ed.), 98; Barlow v. Delaney, 40 Fed. 97. The petition stating that Cartwright purchased the true title in August, 1897, and entered into possession and that plaintiff purchased in July, 1898, shows that plaintiff was never evicted. Where neither title nor possession passes with the deed, the grantor’s covenant of warranty does not attach to the land and run with it, and he, therefore, is not liable to an action by an assignee of his grantee for a breach of such covenant. 8 Am. and Eng. Ency. Law (2 Ed.), 149. (3) The petition states that no title, possession or any interest, passed by the Allen & Bayless deed to W. A. Stilley. The land was in possession of no one — raw, uncultivated land. This being true, the constructive possession was in the true or legal owner and appellant was never evicted. Therefore, no one but Stilley could sue the defendants in this case. In other words, each grantee could sue his immediate grantor only unless some title passed or possession was taken under the deed which, it is alleged, was not done in this case. White v. Stevens, 13 Mo. App. 246; Barlow v. Delaney, 40 Fed. 97; 3 Washburn, Real Prop. (4 Ed.), 128. (4) A subsequent grantee can not maintain a suit against the first grantor, unless he had some title, estate or possession of the land granted. The reason seems to be that the grantor, in such case, has no estate in the land sufficient to carry with it his covenant down the line of successive grants. Beddoe v. Wadsworth, 21 Wend. 124; Wyatt v. Dunn, 93 Mo. 463; Martin v. Gordon, 24 Ga. 533; Mygatt v. Coe, 152 N. Y. 457. (5) In the case of Adkins v. Tomlinson, 121 Mo. 487, the action was between the immediate parties to the deed, and does not announce a contrary doctrine to the one contended for by respondents; in fact, it supports our position. The deed in question is not a general warranty, and was clearly not intended to be by the parties to it. Appellant has a complete remedy by an action against his immediate grantor, but he has no right — taking for granted what he says in his petition to be true, for the purpose of demurrer — to sue these respondents.
   GANTT, J.

This is an appeal from a judgment of the circuit court of Barry county, Missouri, sustaining a demurrer to the petition of the plaintiff and rendering final judgment thereon for the defendant. The appeal in the first instance was taken to the St. Louis Court of Appeals and the judgment of the circuit court affirmed, but one of the judges of the said court being of the opinion that the judgment of the court was in conflict with a prior decision of the said court, it was ordered that the cause be certified to this court for determination under the provisions of the Constitution. The facts of the case fully appear in the opinion of Judge Goode in the St. Louis Court of Appeals. The opinion is as follows:

“On February 1,1893, John Bayless, Thomas Allen and their wives, executed a deed to W. A. Stilley, which purported to convey the title to certain lands in Barry county, Missouri, to the grantee Stilley. The granting clause in the deed recites that the grantors do by these presents grant, bargain and sell, convey and confirm unto the said party of the second part, his heirs and assigns the following lots, tracts and parcels of land, ’ describing the same. Following the description is a habendum clause of the following tenor: ‘ To have and to hold the premises aforesaid unto said party of the second part and unto his heirs and assigns forever; that the said premises are free and clear of any 'incumbrances done by them and it is expressly understood in this conveyance and in the covenants herein that the grantors will warrant and defend the title to said premises unto the said party of the second part and unto his heirs and assigns forever against the lawful claims and demands of themselves, their heirs, or those through whom they claim, except for taxes to become due.’

“After Stilley bought the land it passed by mesne conveyances, mostly in the nature of general warranty deeds, to the plaintiff Miller, who acquired the title July 11, 1898.

“Miller instituted this action February 5, 1902, on the covenants contained in the deed made by Bayless and Allen to Stilley. The court sustained a demurrer to the petition, the plaintiff refused to plead further, final judgment was entered on the demurrer in favor of the defendant, from which judgment the cause was appealed to this court.

‘ ‘ The petition states the execution of the deed containing the covenants in question and alleges that it contained the covenants implied from the words ‘ grant, bargain'and sell’ and of general warranty; that by its terms the defendants covenanted that they were seized of an indefeasible estate in fee simple in the premises conveyed and had good right to convey the same; that Stilley paid one hundred dollars as a consideration for the land. Mesne conveyances are then stated which sufficed to pass whatever title Stilley acquired to the plaintiff, the petition alleging that they also passed to the plaintiff the covenants of seizin and general warranty, so that these covenants became operative in favor of plaintiff.

“It is next averred that the said covenants were broken and violated by the defendants in this: that defendants did not have the legal right to the premises at the date of their conveyance nor the right to the possession nor the possession thereof; hut that the land was then in a raw, uncultivated state, in the possession of no one, and remained in this condition until August, 1897, when one F- R. Cartwright purchased the outstanding title, which was held by T. J. Corpeny at the date of said conveyance by the defendant.

“The petition avers that Cartwright, after purchasing the land, immediately entered into1 possession and excluded the plaintiff from possession under a better title to said premises held by him than plaintiff had or then had been derived from the defendants.

“The petition avers that at the date of the execution and delivery of the deed to Stilley containing the covenants sued on, .defendants did not own the land, bnt that the title was then outstanding in the heirs of one Turner; that Cartwright, at the date of his entry into possession ip August, 1897, entered and claimed the land under a superior outstanding title, which existed at the date of the conveyance executed by the defendants; but that until the entry of Cartwright no claim was made to said premises under the paramount title nor was there an eviction of the plaintiff or his grantors from the premises. The damages which plaintiff sustained by reason of the alleged breach of the covenants are then stated, and judgment prayed for their amount.

‘ ‘ The demurrer filed by the defendants states two grounds: that the plaintiff had no capacity to sue; that the petition does not state sufficient facts to constitute a cause of action against the defendants.

“The deed executed by the defendants to Stilley was called for in the petition, attached as an exhibit to it in appellant’s abstract of the record and is treated by both parties in their briefs as being before this court for its consideration in determining the propriety of the judgment of the circuit court.

“Plaintiff’s petition, taking the view most favorable to him, counts on covenants of seizin and of general warranty. The covenant of warranty actually contained in the deed, which we have recited above, is a special and not a general warranty and bound the defendants to warrant and defend the title to the premises conveyed only against the claims and demands of themselves, their heirs or those through whom they claimed. Inasmuch as the failure of plaintiff’s title was due, according to the petition, to a paramount title superior to that of the defendants’ and was not due to any act of the defendants, their, heirs or other persons claiming under them, no breach of the special covenant of warranty is stated.

“It has been determined in this State and by this court, as well as by courts elsewhere, that the statutory covenants raised by the words ‘grant, bargain and sell’ when used in a conveyance of land, are not restricted in their scope by an express covenant of special warranty, if the latter made no reference to the former covenants, nor is coupled with them in such a way as to modify their ordinary effect.

“Speaking for myself, I must say that the reason-' ing on which such decisions are based is not entirely satisfactory, inasmuch as the words ‘grant, bargain and sell’ constitute the ordinary formula for the conveyance of real estate and are generally employed mechanically in writing conveyances; whereas a covenant of special warranty, restricting the liability of the grantor to the hostile acts and demands of designated individuals, clearly bespeaks an intention on the part of the grantor to decline the responsibility for adverse demands of titles made or held by persons not designated. But the rule is settled the other way in this State as well as in other states, and we would have to regard it as binding on us in a c'ase falling within its scope. [Tracy v. Greffet, 54 Mo. App. 562; Rowe v. Heath, 23 Tex. 614; Brown v. Tomlinson, 2 G. Greene (Iowa) 525; Gratz v. Ewalt, 2 Binn. (Pa.) 98; Funk v. Voneida, 11 Serg. & R. 111; Roebuck v. Dupuy, 2 Ala. 541; Stewart v. Anderson, 10 Ala. 504; Winston v. Vaughan, 22 Ark. 72; Prettyman v. Wilkey, 19 Ill. 235.] The contrary ■rule seems to have been adopted in Mississippi. [Weems v. McCaughan, 7 Sm. & Marsh. 427; Bush v. Cooper, 26 Miss. 599.]

“The doctrine of the courts is that general covenants whether they be expressed on the face of the deed or raised by implication of law from the words ‘grant, bargain and sell’ are not restricted in their operation by limited special covenants unless the different covenants are so irreconcilable that they cannot all have their full force, or unless the limited covenant refers to or is connected with the general covenants in such a manner as to show the intention of the grantor was to restrain the force and effect of the general covenants. [Alexander v. Schreiber, 10 Mo. 460, a case in which a number of authorities on the subject are examined.]

“But it is also the law however general and far-reaching the force of any covenant (whether expressed in the conveyance or implied by the law) might be if it stood alone, if it is connected with restrictive language in the deed which shows clearly that the grantor intended to qualify and limit his responsibility on the covenant below its usual sense, the operation of the covenant will be determined, not in its usual sense, but from the entire contents of the deed. This simply means that the intention of the parties to an instrument is gathered from its four corners, and when thus gathered will be enforced; and it may be said that that rule of construction is now as applicable to conveyances of land as to any other sort of contracts and is no longer hampered by those ancient rules which made the different clauses of a deed depend on whether they preceded or followed each other in the instrument, rather than on the plain intention of the parties. [Gainsford v. Griffith, 1 Saund. 60; Foord v. Wilson, 8 Taunton 543.] In the first of those two decisions in considering when a special covenant restrained a general one, it was said: ‘Every case must depend on the particular words used in the instrument before the court and the jurisdiction will be found to be very nice and difficult.’

“The rule that covenants are taken most strongly against the covenantor is reversed in the case of statutory covenants because they are implied and are in derogation of the common law. [Douglass v. Lewis, 131 U. S. 75.]

“Many of the authorities on the question of whether a special covenant embraced with general ones in a deed will control the operation of the latter, are collected in Rawle on Covenants of Title (5 Ed.), sec. 287, et seq., to which, without reviewing the cases, we refer. We do not review them because, in our opinion, the clauses of the deed before us leave no doubt that the implied statutory covenants are to be restrained by the special warranty, and for this reason: the latter expressly refers to the former and undertakes to confine their operation. The special warranty stipulated that ‘It is expressly understood in this conveyance and in the covenants herein, that the grantors will warrant and defend the title to the premises conveyed against the lawful claims of themselves, their heirs and those, through whom they claim.’ If the implied covenants are taken to he of unlimited and unrestrained operation, no force whatever can he given to the words of the special warranty that ‘ it is expressly understood in this conveyance and in the covenants hereinThose words ‘covenants herein’ must refer to the implied covenants and limit their operation; for the deed contains no other covenants to which they can refer. The meaning of the instrument, considered as a whole, is that the grantors refused to hind themselves by general covenants, hut restricted their liability; and it is to be interpreted as a special warranty deed without general covenants. In its reference to the other covenants, that warranty in this instrument differs from those construed in Tracy v. Greffet, 54 Mo. App. supra, and in the cases on which that decision was based, each of which warranties contains no such reference, hut was an isolated obligation independent of the rest of the deed.

“As no breach of the covenants, when correctly understood, was stated in the petition, the demurrer was rightly sustained and the judgment is affirmed.”

It is unquestionably the law of this State, as stated by Judge Goode in his opinion, that general covenants in a deed of conveyance, whether they be expressed on the face of the deed or raised by an implication from the use of the words “grant, bargain and sell,” as provided by section 907, Revised Statutes 1899, are not restricted in their operation by special covenants, unléss the different covenants are so irreconcilable that they cannot all have their full force, or unless the limited covenant refers to or is connected with the general covenants in such a manner as to show the intention of the grantor was to restrain the force and effect of the general covenants. The law was so announced in Alexander v. Schreiber, 10 Mo. 460 ; Shelton v. Pease, 10 Mo. 474. The majority opinion of the Court of Appeals fully recognizes the foregoing statement of the law in this State, but in its application to the covenants in the deed on which this action is based, the court held that the particular language of the special warranty limited the general covenants implied by the words “grant, bargain and sell,” and we think correctly. The opinion in our judgment is in no conflict with the decision of the Court of Appeals in Tracy v. Greffet, 54 Mo. App. 562. For the reason given by Judge Goode in his opinion, the judgment of the circuit court is affirmed.

All concur.


author: BURGESS, P. J.

text:
    R. B. BRADSHAW, Appellant, v. EDELEN et al.
    Division Two,
    March 6, 1906.
    1. PATENT: Island: Ownership. An island in the Missouri river surveyed by the Government and in this way appropriated and reserved to it, in 1820, before the admission of Missouri into the Union, continued to he the property of the United States until patented in 1849.
    2. -: Prima-Facie Evidence. The patent is at least primafacie evidence that all prerequisites of the law necessary to its issuance were complied with.
    3. -: Description: Field Notes. Field notes of Government surveys will control in ascertaining location even when the monuments established by the surveyor cannot be found.
    4'. -: Island: Existence. It will be assumed where the Government surveyed an island in the Missouri river prior to the admission of Missouri into the Union and an island answering its description can he located and identified from the field notes, that the island sprang up and formed before the survey was made.
    5. ACCRETIONS: Independent Sandbars: Conflict In Evidence. Where defendants’ evidence showed that they owned a long island in the river, that it began to wash away at its upper end and as it did so the alluvium was deposited against the lower end and thus the island was moved a half mile down the river, a small piece of five acres, against which the accretion first began, having never been washed away, and plaintiff’s evidence was to the effect that the formation began as a sandbar in the river and as such was swelled into an island which extended towards the original island until it became connected with it, the appellate court will not undertake to settle this conflict in evidence. And a verdict for defendants, under proper instructions, will not be disturbed, for that necessarily found that the original island had not all washed away and that the made land was an accretion thereto.
    Appeal from St. Louis City Circuit Court. — -Roto. Robert M. Foster, Judge.
    Affirmed.

      Frank K. Ryan and E. P. Johnson for appellant.
    (1) The islands sued for existed prior to 1895, and in that year they were granted to St. Charles county for school purposes (sec. 8346, R. S. 1899), granting all islands belonging to the State then formed. They were surveyed, sold, patented and the patents recorded by said county, pursuant to secs. 8347, 8197 and 8198, Id., and sec. 8248, Id., makes them prima facie evidence of title. The deed of his co-patentees to plaintiff gave him such a prima facie title to the whole of them, and the evidence sustains that title. (2) The burden is on defendants to disprove the title shown by plaintiff in order to sustain the verdict in their favor, and this they have failed to do. Their only claim to do this is based on the patent to Laurentius M. Eiler, for an island in the Missouri river, issued May 1, 1849, on a
      certificate of entry, the date of which does not appear. The island is neither numbered nor named in it, nor does it embody any plat or refer to any survey. It merely conveys fractional on islands in Missouri river of sections 30 and 31, township 48, range 7 east (all different from the land sued for), containing 59.79 acres. The surveyor for defendants testified that he could not locate it, and the evidence fails to do so. The objection to it on this ground should have been sustained and the patent excluded, thus ending the defense. Long v. Higginbotham, 56 Mo. 251. (3) The president had no authority, for lack of an authorized or any survey, tested by the evidence herein, to order the sale of the island patented to Eiler. The officers of the Land Department, for the same reason, had no authority to sell or issue a patent for the island. Hardin v. Jordan, 140 U. S. 400 ; Buxton v. Traver, 130 U. S. 235. And having been issued without authority, it is void and should have been excluded. Easton v. Salisbury, 21 How. (62 U. S.) 431; Sherman v. Buick, 93 U. S. 216;.Knight v. U. S. Land Assn., 142 U. S. 176; Morris v. United States, 174 U. S. 243; Cummings v. Powell, 116 Mo. 477; Gibson v. Chouteau, 39 Mo. 564. (4) All land below high water mark on tide waters was held by the United States in trust for the future State, and when a State was admitted into the Union, the title to such land vested in the State. Pollard v. Hagan, 3 How. (44 U. S.) 221; Knight v. U. S. Land Assn., 142 U. S. 183; Shively v. Bowlby, 152 U. S. 26. The same doctrine has been applied to navigable rivers above tide water, and it is held that the title of the United States stops at high water mark on them, and that the beds of the streams and the land below high water mark belong to the States, which may concede them to the riparian owner, or otherwise dispose of them. Barney v. Keokuk, 94 U. S. 337; Packer v. Bird, 137 U. S. 671; Hardin v. Jordan, 140 U. S. 382; Shively v. Bowlby, 152 U. S. 27; Railroad v. Butler, 159 U. S. 87; Water Power Co. v. Water Com’rs., 168 U. S. 358; Whitaker v. McBride, 197 TJ. S. 511; Cooley v. Golden, 117 Mo. 48; MeBaine v. Johnson, 155 Mo. 202; Moore v. Farmer, 156 Mti. 48; State v. Longfellow, 169 Mo. 121. (5) In Missouri, a riparian proprietor owns only to low water mark. 0 ’Fallon v. Daggett, 4 Mo. 347; Hahn v. Dawson, 134 Mo. 591; MeBaine v. Johnson, 155 Mo. 201; Moore v. Farmer, 156 Mo. 47; State v. Longfellow, 169 Mo. 127. And the State owns the beds of navigable streams and islands that spring up in them. Cooley v. Golden, 117 Mo. 48; MeBaine v. Johnson, 155 Mo-. 201; Moore v. Farmer, 156 Mo. 48. (6) There is no evidence as to when the island in the Eiler patent sprang up, and the surveyor who surveyed the public lands of the United States in St. Louis and St. Charles counties in 1816 obeyed the latter part of the second clause of section 2396, Revised- Statutes United States, and stopped at the Missouri river. Thé island might not have been formed then, nor until after the State was admitted into the Union. A certified copy of a document dated July 8, 1820, purporting to be a survey of - Island No. 102, in said river, but not purporting to have been executed under any authority, or by any officer or surveyor, and not signed by anyone, nor approved, is produced in tins case for the purpose of locating the Eiler patent. It is the thoroughly settled law that, when the Government surveys its land on a navigable river, and leaves an island on the river unsurveyed, and sells the land opposite the island, its title to the island is thereby sold and vests according to the law of the State, in either the State or the riparian owner. Whitaker v. McBride, 197 U. S. 512. And this rule holds good, notwithstanding the officers of the Land Department, after the original survey and sale, surveyed, sold and patented the island. Railroad v. Butler, 159 U. S. 88; Railroad v. Schurmeier, 7 Wall. (74 U. S.) 289. If mere neglect to survey an island thus vested title to it, a fortiori, the exclusion of it from a survey by the latter part of clause 2, section 2396, Revised Statutes United States, and the continued failure of Congress to provide for sucb a survey or sale did tbe same, especially in view of tbe fact that this provision is now over one hundred years old.

      Hickman P. Rodgers for respondents.
    (1) An island in the Missouri river surveyed by the U. S. Government in 1820 was thus appropriated and reserved by it, and did not pass to the State of Missouri when the latter was subsequently admitted into the! Union. Widdicombe v. Rosemiller, 118 Fed. 295. (2) A land patent from the United States Government is prima facie evidence that all steps necessary to its issuance have been regularly taken. Cramer v. Keller, 98 Mo. 279. (3) (a) Field notes of U. S. Surveys of public lands will control in ascertaining locations, even though the monuments established by the government surveyors can not be found. Carter v. Hornback, .139 Mo. 243. (b) Fractional sections necessarily have water for at least one boundary. Shelton v. Maupin, 16 Mo. 124. (4) The defendants are the owners of all accretions to the land patented by the United States to Eiler, to whose title they succeeded. McBaine v. Johnson, 155 Mo. 200. (5) Defendants’ instruction properly defined accretions. Naylor v. Cox, 114 Mo. 232; Vogelsmeir v. Prendergast, 137 Mo. 271; Widdicombe v. Chiles, 173 Mo. 195.' (6) This court will not interfere with the verdict of a jury even though the evidence conflicts, when there is evidence to support it and the instructions of the successful party correctly declare the law applicable to the case.
   BURGESS, P. J.

This is an action of ejectment, begun in the circuit court of St. Charles county, for the possession of two islands in the Missouri'river, in said county, one containing three hundred and twenty-two and ninety-hundredths acres, being part of sections five, eight and nine, of township forty-seven, range seven, east, designated on the plat of'the county surveyor of said county as “Nicholson’s Island East of Slough,” and the other island, containing one hundred and thirty-five acres, being part of sections five and six, same township and range, designated on said plat as “Nicholson’s Island West of Slough,” and stating the fractional quarter sections and the number of acres of land in each fraction. The petition is in the usual form in such cases. Ouster is laid July 28,1902.

Defendants’ answer was a general denial, and a plea to the jurisdiction of the circuit court of St. Charles county on the ground that the lands sued for are situated in St. Louis county. Plaintiff made reply to the answer by general denial. On application of defendants the venue of the cause was changed to the circuit court of the city of St. Louis, resulting, upon trial had before the court and jury, .in a verdict and judgment for defendants. In due time plaintiff filed motion for a new trial, which being overruled, he saved an exception, and brings the case to this court for review.

The salient facts of the case, as disclosed by the record, are substantially as follows:

Plaintiff read in evidence, as color of title, a deed from David Morrell and Susan, his wife, by Barton Bates and Edward Harén, trustees under deed of trust, to David Nicholson, dated April 14, 1865, purporting to convey two parcels of land in St. Charles county, aggregating 3,167 acres, the larger tract being bounded on the south by the Missouri river. This larger tract originally included about one-half of the space subsequently occupied by “Nicholson’s Island East of Slough, ’ ’ the bank of the river in 1871 running through said island, the then boundary of said larger tract before it began to wash away.

Swamp land patent, No. 264, St. Charles county, to Jane and David Nicholson, Maggie Tracy and R. B. Bradshaw, dated April 8, 1902, conveying to thein, for $270 said “Nicholson’s Island West of Slongh,” stating fractional sections, etc.

Swamp land patent No. 265 in all other respects the same as last, conveying to same parties for $322.90 “Nicholson’s Island East of Slough.”

Warranty deed of said Jane Nicholson, widow of David Nicholson, David Nicholson, Maggie Tracy and John H. Tracy her husband, to R. B. Bradshaw, dated and acknowledged July 28,1902, conveying to him their interest in said premises for $270.

The evidence for plaintiff tended to show that David Nicholson began to occupy and improve the tract of land described in said deed of David Morrell and wife by trustees to him, prior to 1876, by building houses and a saw-mill on it, cutting timber on and clearing land, placing tenants and paying taxes thereon, all under claim of ownership, continuously, until he died in 1880, and this occupancy and claim of ownership of it was kept up continuously by his administrator and then by his heirs to the time of trial, except portions of it that washed away and that they sold in the meantime.

David Nicholson died November 27, 1880, and left surviving him besides his widow, Jane, four children, David, Annie, Nellie and Maggie Nicholson. The latter was married to John H. Tracy. Annie and Nellie died in 1887, both unmarried. These islands were not there during David Nicholson’s lifetime, but were formed since his death.

Defendant Edelen was on the land sued for when this suit was brought, and defendant Smith also in possession of it.

Prior to the conveyance from David Morrell, by trustees, to David Nicholson, there was an island in the' Missouri river on the St. Louis county side, called Little’s Island, above where the premises sued for are situate. The main channel of the river was between it and the St. Charles county side. Little’s Island was a long strip of land with the lower end of it narrow, its head being up the river, and the whole of it above where the premises sued for are located. After David Nicholson began clearing his said tract of land, about 1876, or subsequently, the bank of the river began to cave in rapidly and wash away, and continued to do so until quite a large portion of said tract disappeared and the river ran over the space it formerly occupied. The head of .Little’s Island also then began to wash away, and this caving in and washing away of the bank and island continued until the channel between Little’s Island and the St. Charles county side filled up so that where boats used to land, there is now for about a half mile, timber and farming land. There was evidence that the island itself gradually washed entirely away, six years or more before this trial, and the main channel of the river changed to the St. Louis county side. That after Little’s Island washed away a bar formed in there above, and bars were formed in the river below as it washed away, and they continued to form up to the time of this trial. That Nicholson’s Islands were not formed on any part of where Little’s Island had been, but in front of Nicholson’s land. That prior to David Nicholson’s death there was no island in the river in front of his property. As Little’s Island washed away, bars formed below, willows grew on them, the water flowed between, and the bars finally became connected by settling between them. The caving in and washing away of the Nicholson land also formed bars in front of that land, and together they formed Nicholson’s Islands. There are three or four of the formations, sloughs all over them, and a slough dividing the two islands. They had been forming and had willows on them in 1892. Before the Nicholson land caved in, the whole river there was channel, but after the caving in there was a number of channels, and boats sometimes ran up the slough between Nicholson’s Islands and the St. Charles county shore, and sometimes through the fields, hut the main channel there after that was always on the St. Louis county side.

Carl Edwards, county surveyor, named the islands Nicholson’s Islands in 1902, when, he made the survey for school lands. Lines drawn horizontally from the present hank and Nicholson’s tract include all of the islands in the two patents. The patents include the land in the islands, but there is a little sand-bar, covered with willows between them and the St. Charles county shore, not included in them. The main channel of the Missouri river has been on the south side of these islands ever since prior to 1892.

Plaintiff’s survey of these islands was made from the St. Charles county side of the river. A range line from St. Louis county prolonged into St. Charles county won’t correspond, and a survey made from the St. Louis county side would not agree with the figures in plaintiff’s, pi at made from the St. Charles side. There would be a difference in them, but how much is not stated. Little’s Island, or Island No. 102, is shown on certified maps of St. Louis county, but not on those of St. Charles county. At the time of plaintiff’s survey, in January, when the water was low,, there were little pools of water between the point of Nicholson’s Island and Little’s Island, or, rather, the sand-bar where the lower end of Little’s Island had been. There was a slough between them, and in ordinary stages of water it always ran through, and when the water was at a stage of 12 or 13 feet, it covered the sand-bar, where the lower end of Little’s Island had been. According to plaintiff’s statement, which is by no means clear in this particular, “There is a bank, well defined, at the head of Nicholson’s Island, 14 feet high, and the slough is between this bank and Little’s Island, now a sandbar. You could never drive across the slough between Nicholson’s Island and the main land. The bank of the Missouri river, in 1871 (marked on plaintiff’s plat of Nicholson’s Island), is taken from the record of surveys of Carl C. Ertz, county surveyor of St. Charles county, made in 1871, and according to that map, plaintiff’s plat and extending line from St. Charles county, and best information the surveyor could get, Little’s Island entirely washed away, and a sand-bar is located where the balance of it had been, which is under water at ordinary stages. Said surveyor never extended the St. Louis county lines to ascertain whether it was located there.”

The foregoing presents the plaintiff’s case in chief, and the point insisted on by the defense is, that the defendants acquired title to Little’s Island, or No. 102, and that it washed away at the head, and accretions formed to it at its foot. That there remains about five acres of the original island at the head of the island. That it always constituted one island and is owned in fee by defendants, and that there never was a Nicholson’s Island there.

The evidence introduced by defendants tends to show that in the year 1820, about a year prior to the admission of the State of Missouri into the Federal Union, the United States government made a survey of an island in the Missouri river, not far from its confluence with the Mississippi, and which was designated “Island No. 102;” and field notes of said survey, bearing date July 8th, 1820, were found as a part of the records of the office of the Secretary of State of Missouri, a certified copy of which field notes was received in evidence. While somewhat ambiguous, said field notes would seem to show that the only monuments mentioned therein were trees. For instance, ‘ Set a post on the margin of an island, corner of Th. secs. 30 and 31, T. 48, N., R. 7 E., from which a B. elder 10 in. dia. bears N. 14 E. 65 L. and a cotton 18 in. dia. bears S. 56 degrees 3 links. . . . 4.37 a cotton 20 in. dia.”

In 1849 the United States government issued to one Laurentius M. Eiler a patent “for the fractionals on island in Missouri river, of sections'thirty and thirty-one, in township forty-eight, of range seven, east, in the District of Lands subject to sale at Saint Louis, Missouri, containing fifty-nine acres and seventy- nine hundredths of an acre, according to the official plat of the survey of the said lands returned to the General Land Office by the Surveyor General, which said tract has been purchased by the said Laurentius M. Eiler. ’ ’

The Eiler title, so obtained, became vested through mesne conveyances in John M. Little, James W. Little and Mary E. Brown, defendants in this case, the deed by which the said defendants acquired title being of date October, 1875, and describing said island as being “through accretions supposed to contain 130 acres, more or less.”

The county surveyor of St. Louis county and his brother, also a surveyor, both testified that they located a part of the land in dispute, and which had for many years been known as “Little’s Island,” as well as “Island No. 102,” within the bounds of said U. S. survey of 1820, and within the same township, sections and range described in said patent to Eiler; that a large portion of the upper, or westerly, part of the island had disappeared, and a large addition had been made at the foot, or easterly end thereof, making a contiguous body of land aggregating more than 500 acres, while but five acres of the ground as originally surveyed in 1820 remained at the time of the trial. These two surveyors described in detail the manner in which they identified the land by lines of survey, and from their testimony it would appear that the survey of 1820 connected Island No. 99 with the St. Louis county shore, Island No. 101 with No. 99, and Island No. 102 with No. 101, and that the same witnesses conducted their survey in the same manner.

Defendants introduced in evidence the following plat:

In connection with this plat an explanation appearing from the testimony in the canse is important, and it is one that runs all through the case. It seems that all surveys of the character herein involved are connected with a meridian line; and that in the meridian involved in this case'there is a jog at the Missouri river to such an extent that a certain township, section and range in the river ascertained from the St. Louis county side would locate a point nearly a mile away from a point described by the same township, section and range numbers ascertained from the St. Charles county side of the river. And the United States surveyors and the surveyors who testified for defendants in this case all reckoned from the south side of the river, while the surveyors who testified for plaintiff and on whose surveys the county of St. Charles acted in the matter, reckoned from the north side.

Aside from the testimony of defendants’ surveyors the identity of the land patented to Eiler is thoroughly established by testimony of John M. Little, one of the defendants, who testified that he knew the island in 1846; that he went there at that time with his -father and cut timber; that his father afterwards purchased it and that it had been in the family until the time of the trial below. This witness had been on the land at frequent intervals, and produced receipts for taxes paid on the same by him and his family covering a continuous period from the year 1854 to the time of the trial, 1903. He also produced a redemption certificate, which was admitted in evidence, showing that the county of St. Louis sold the land involved herein on the 14th of October, 1864, to one B. A. Hill, for taxes, and that James R. Little (ancestor of said defendants), redeemed same from said purchaser on June 14, 1865.

Captain John M. Grillham testified for defendants that he had been steamboat master and pilot and otherwise engaged in running boats on the Missouri river since 1858, and remembered Little’s Island ever since that time. It was tbe first island west or above where the Burlington bridge now stands. All of plaintiff’s witnesses identified Nicholson’s Island (which plaintiff claims to have acquired by the action of the county court of St. Charles), as being the first island west, or above, the said Burlington bridge. Captain Gillham described the action of the river on Little’s Island as wearing or washing away land at the head, or westerly end thereof, and by slow degrees adding to the foot, or easterly end, thereof, apparently moving the island down stream half a mile or more; and also testified that when he first ran the river at that point the channel was between Little’s Island and the St. Charles county shore, but that along in the 70’s the river took a change at that point, the channel going to the St. Louis county side, apparently moving Little’s Island from the south to the north side of the river.

Two other steamboat captains of similar experience, gave similar testimony. Plaintiff’s counsel in the examination of these witnesses, as well as in the cross-examination of other witnesses for the defense, endeavored to make it appear by their testimony that additions to the island were made by bars forming below, separate and distinct from the island proper, and after-wards attaching themselves thereto, and the witnesses adhered to the fact that these additions to the island were made by gradual accretions attached to the main land of the island when first appearing.

Christ Warnecks testified for defendants that he had known Little’s Island since 1862; that he moved on it in 1871, lived there five years, built a house and stable on it, raised good crops and chopped 140 cords of wood off of it.' That there were large trees on it at that time, some of which he had seen there six months before the trial below. This witness said that he had seen this island every month since 1871 and lived close to it all that time. That the island which is there now, and which is called Little’s Island, is the same island which he farmed more than 30 years before. This witness also testified to the washing away of the island at the head and the forming of additions thereto by gradual accretion. This was followed by corroborative testimony of ten or twelve citizens of St. Louis county who lived in the immediate vicinity.

The evidence shows that trees of large size, and ancient, bulky, blackened stumps were in the cornfields on the island, all of which trees and stumps were within the knowledge of nearly all of defendants’ witnesses, and in existence on the land within a month of the trial. Furthermore, there is testimony in the case that some of these trees were sycamores and of slow growth, and that one of them, measuring over 11 feet in circumference, was a large tree when' defendants ’ witness Brown was a small boy.

At the conclusion of the evidence the plaintiff asked the court to give the following instructions:

“1. The court instructs the jury that if they believe from the evidence that Little’s Island was lost by being entirely washed away by the waters of the Missouri river, and that afterwards an island or sand-bar formed where Little’s Island stood, and that said sandbar or island, or the accretions, if any, thereto, is the land in controversy, still this, will not defeat plaintiff’s right to recovery.

“2. The court instructs the jury that if you find from the evidence that, a sand-bar or island formed in the Missouri river opposite or bélow Little’s Island, and that the waters of the Missouri river ran around said island or sand-bar for any considerable length of time, and that the defendant is occupying said island, or islands or sand-bar thus formed, then such island or sand-bar is not an accretion to said Little’s Island, although the jury may find from the evidence that such sand-bar or island afterwards was connected with said Little’s Island or any part thereof, and yonr verdict must be for the plaintiff.

“3. The court instructs the jury that if you believe from the evidence that the land in controversy is an island, or islands formed in the Missouri river, and not Little’s Island, or an accretion thereto, as explained to you in other instructions, and that said land was sold in the county of St. Charles to plaintiff, and his grantors, then the plaintiff is entitled to recover and your verdict must be for the plaintiff.

“4. The jury are further instructed that if they believe from the evidence that Island No. 102 or Little’s Island washed away, then defendants and those under whom they claim lost all claim that they may have had to said island and the land that formed the same, notwithstanding the jury may believe from the evidence that the land or some portion thereof formerly composing said island was precipitated from the water of said river and settled upon or became attached to a formation of land below it in said river, and that the latter formation now forms a portion pf the land described in the petition of plaintiff.

“5. If the jury believe from the evidence that there is and has been continually a slough or channel of the Missouri river between the land in controversy and Little’s Island, then the plaintiff is entitled to recover and your verdict must be for plaintiff.

“6. The jury are further instructed that the defendants have not proved any title to the premises •described in the petition of plaintiff. '

“7. The jury are instructed that under the pleadings and evidence in this cause they will find a verdict for the plaintiff. ’ ’

The court refused each and all of said instructions, to which action of the court in refusing said instructions and each of them the plaintiff at the time excepted.

The plaintiff further asked and the court gave to the jury the following instructions:

“8. The jury are instructed that under the evidence in this cause the land described in the petition of plaintiff is situate in St. Charles county.

“9. The jury are further instructed that Island No. 102, or Little’s Island, in the Missouri river, was in St. Louis county, and that if they believe from the evidence that said island was entirely washed away, then defendants, and those under whom they claim, lost all claim they may have had to said island.

“10. The jury are instructed that the Statute of Limitations did not run against the State of Missouri or St. Charles county, and that defendants did not acquire any title by any possession they may have had of the same to any portion of the land .sued for, as against the patents for the same issued by St. Charles county and read in evidence by plaintiff.

“11. The jury are further instructed that if they, further believe from the evidence that the land described in the petition herein is an island or islands formed in the Missouri river, below Island No. 102, or Little’s Island, or below where it was formerly situated, then the title to the same vested in the State of Missouri, and the swamp land patents, signed by Vic D. Dierker, presiding judge of the county court, and the deed from Jane Nicholson, David Nicholson, Maggie Tracy and John H. Tracy, her husband, to R. B. Bradshaw, read in evidence by plaintiff, vested the legal title of the land therein described in said Bradshaw.

“12. The court instructs the jury that if they believe from the evidence that the land in controversy was not formed by accumulations of soil, slowly and imperceptibly washed up or deposited against the lower end of Little’s Island; but that said land was formed by sand-bars forming in times of high water in the river, below, near or contiguous to Little’s Island, and by deposits of sand, sediment and soil carried on said bars by succeeding floods said sand-bars were transformed into Little’s Island, or by waters of tbe river receding therefrom, then defendants did not acquire any title to the land so formed, and your verdict must be for the plaintiff.

“13. The jury are instructed that accretions to land can be formed only by gradual and imperceptible deposits from the river, the progress of which cannot be observed from day to day, but only in considerable periods of time, or by a like gradual and imperceptible recession of the water of the river, and they are therefore instructed that if they believe from the evidence that sand-bars were formed in times of high water in the river either contiguous to or near Little’s Island, that subsequently became land attached to said island, that such land so formed is not an accretion to said island and defendants did not acquire any title thereto by reason of any title they may have owned to said island.

“14. The jury are instructed that although they may believe from the evidence that the land lying west of or up the river from the line marked slough on the plat of Nicholson’s Island, read in evidence by plaintiff, was a part of the original Little’s Island or of accretions thereto formed by gradual and imperceptible deposits from the river, yet if they further believe from the evidence that the land began to form east of or down the river from said line marked slough on said plat, and that the same was, at the time it began to form, separated by a channel or slough of said river through which water flowed at seasons of low water, which channel or slough gradually filled up, then the land formed east of or below said line marked slough on said plat was not an accretion to said land lying west of or above the same on said plat, and the jury will find a verdict for plaintiff for all the land lying east of or below said line marked slough on said plat.

“15. The court instructs the jury that the patent of the county of St. Charles to plaintiff and his grantors, is prima-facie evidence that the title to the land therein described was in the county of St. Charles, and the introduction of said patent in evidence made out a prima-facie case for plaintiff, and the burden is upon the defendants to overcome such prima-facie case by proving to the satisfaction of the jury that the land in controversy is Little’s Island, or accretions thereto, as explained to you in other instructions.

“16. The jury are further instructed that if they find a verdict for plaintiff, they will assess his damages at any sum, not exceeding three hundred dollars, they may believe from the evidence is the rental value of the premises they find he is entitled to recover, from the 29th day of July, 1902, to the present time, and also find what they may believe from the evidence is the monthly value of the rents and profits of said premises in a sum not exceeding twenty-five dollars. ’ ’

Over the objection and exception of plaintiff, the court, at the request of defendants, instructed the jury as follows:

“1. The court instructs the jury that if you believe from the evidence that the defendants, John M. Little, James W. Little, and Mary E. Brown, are the same persons described in the deed from Elizabeth Little and introduced in evidence, then they became owners of the land described in the patent from the United States to Eiler, also introduced in evidence in this case; and if you further believe from the evidence that such land was in the form of an island in the Missouri river, then the boundaries of said land extended in each direction to the water’s edge, and all new land or soil, which you believe from the evidence may have been added to such island by gradual accretion to its shores, or by the gradual recession of the waters of the river from its shores, became a part of such island and also became the property of said defendants, even though such accretions and new land so formed and added to said island extended over and included portions of that territory where land owned by Nicholson had formerly been located; provided you also believe from the evidence that said land of said Nicholson located in said territory as above described had been washed away by the river to the level of the river’s bed, and to such extent that the channel of said river flowed over the same locality occupied by said portions of land of said Nicholson prior to the formation of said accretions and new land.

“And if yon further believe from the evidence that the land in dispute in this suit is made up of land described in said patent from the United States goverment, or any part of same, and new land gradually added thereto by accretion or recession, as above described, then the plaintiff acquired no title or right of possession to the land in dispute by reason of the patents to same made by the county of St. Charles or its officials, and your verdict should be for defendants.”

Plaintiff claims that the islands sued for existed prior to the year 1895, but that they were not surveyed or numbered and could not be located, and that having been formed in a navigable stream, they belonged to the State; that by the act of 1895 (Laws 1895, p. 207; sec. 8343, R. S. 1899), they were granted to the counties in which located; that the lands in question are located in and belonged to St. Charles county, and by sales thereof by the county court of said county to Jane and David Nicholson, Maggie Tracy and R. B. Bradshaw, and patent issued to them by said county in pursuance of said sale, they acquired the legal title to said “Nicholson’s Island West of the Slough.” That the same is true with respect to “Nicholson’s Island East of the Slough,” which was sold by said county to the same persons, and that as plaintiff acquired by deed the interest of Jane Nicholson, widow of David Nicholson, Dora Nicholson, Maggie Tracy and John H. Tracy, her husband, he is the owner of the legal title to said land and prima-facie entitled to its possession. The argument is that under the state of facts recited, the burden is upon the defendants to disprove the title shown by plaintiff in order to sustain the verdict, and that they have failed to do this. That their only claim to do this is based on the patent issued May 1, 1849, to Laurentius M. Eiler for an island in the Missouri river, on a certificate of entry the date of which does not appear-That the island is neither numbered nor named in it, nor does it embody any plat or refer to any survey, but merely conveys fractionals on island in the Missouri river of sections thirty and thirty-one, township forty-eight, range seven, east, containing 59.79 acres, and that this is not the land sued for; that the surveyor, testifying for defendants, stated that he could not locate it, and the evidence fails to do so, and that the patent should have been excluded. In support of plaintiff’s position he cites the case of Long v. Higginbotham, 56 Mo. 245; but it is said in that case: “The law applicable to deeds from the Government to individuals, and to deeds between parties grantor and grantee, is not so strict in its requirements of certainty in their description of the lands conveyed, as in sheriff’s sales and other proceedings in invitum. In the former, parol evidence is allowed to explain and identify and locate. ’ ’ In the case of Widdicombe v. Rosemiller, 118 Fed. 295, it is said: “Island No. 42 [in the Missouri river] was surveyed by the general government, and thus appropriated and reserved by it, in 1820, before the admission of' the State into the Union. ' It and the control of the river never passed to the State under the act of admission. It continued to be the property of the United States until it was patented in 1896 to this plaintiff.” The field notes of the United States survey of Island No. 102, of date July 8, 1820', a certified copy of which, was introduced in evidence by defendants, clearly established that Little’s Island was surveyed by the United States government prior to the admission of this State into the Union, which occurred August 10, 1821. The weight of the evidence shows that Little’s Island and Island No. 102 are one and the same. The island in question, having been surveyed by the general government, and in this way appropriated and reserved by it, in 1820, before the admission of the State into the Union, continued to be the property of the United States until it was patented to Laurentius M. Eiler. A patent issued by the United States government is at least prima-facie evidence that all prerequisites of the law, necessary to its issuance, have been complied with, [Cramer v. Keller, 98 Mo. 279.] It has also been held that field notes of United States surveys of public lands will control in ascertaining locations, even though the monuments established by the government surveyor cannot, as in this case, be found. [Carter v. Hornback, 139 Mo. 238; Minter v. Crommelin, 18 How. 87.] There was some difference between the evidence of the surveyors who testified in the ease as to the location of the island in question, owing to the fact that the township and range lines south of the Missouri river which run north from the south, and the lines north of the river, south from the north, seem to vary from one-half mile to a mile. But the Elbring brothers, surveyors, who testified for defendants, located the land described in the government patent to Eiler as being within the island, township, range and sections described in said patent, and as no other land was located within the same, this testimony could have had no application to any other island. While the evidence shows that the principal part of Little’s Island washed away at its head there were several acres of its lower end which had not washed away, and to which accretions gradually formed; so that' its identity was not entirely destroyed. Nor do we think it a matter of any consequence that Surveyor Elbring did not find the monuments mentioned in the government survey, as they were simply trees, and would necessarily, in so many years, undergo so many changes as to place them beyond recognition. There. was an abundance of evidence tending to show that the accretions to the lower end of Island No. 102, or Little’s Island, were gradual and imperceptible, and that the land in possession of the Little family is in fact but one island. It is true there was evidence on the part of the plaintiff which tended to show that the accretions at the lower end of the island were occasioned by sandbars forming there, which afterwards became connected with the island, but upon this question the evidence was conflicting and the weight thereof for the consideration of the jury.

Plaintiff’s case seems to rest entirely upon the proposition that Little’s Island was washed away. Unless this was so, from our point of view, the defendants, having through mesne conveyances succeeded to the title of the patentee, Laurentius, M. Eiler, became the owner not only of the island but also all accretions to any part of it remaining since the time of the Government survey. That Little’s Island had not, up to the time of the trial at least, been entirely washed away is indicated by the trees and stumps of apparently more than fifty years of age standing in the corn fields. The idea that a slough ran between “Nicholson’s Island West of the Slough” and “Nicholson’s Island East of the Slough” cannot be correct if, as contended by plaintiff, Nicholson’s Island and Little’s Island were one and the same; While the evidence shows that there was a ravine in Little’s Island, that did not have the effect of dividing it into different tracts. According to the evidence, some of the large stumps of which we have spoken were situated in this ravine or “slough.”

Plaintiff contends that there was no evidence as to when the island described in the Eiler patent sprang up; but we think that, as the record shows that in the year 1820, the United States government made a survey of an island, designated as “Island No. 102,” in the Missouri river, not far from its confluence with the Mississippi river, field notes of which survey were afterwards found as a part of the records of the office of the Secretary of State of this State, and a certified -copy thereof read in evidence in this case, there can be no question that the island sprang up or was formed before it was surveyed, and, therefore, before Missouri was admitted into the Union of States.

We find no error in the instructions given at the instance of the defendants or in the refusal of the court to give the instructions asked by the plaintiff. Taking the instructions given as a whole, they presented the law of the case very fairly to the jury.

The judgment is for the right parties, and should he affirmed. It is so ordered.

All concur.


text:
    MORGAN et al. v. KELLER et al., Appellants.
    Division Two,
    March 6, 1906.
    1. MOTION FOR NEW TRIAL: Sufficiency. Although the motions in a law ease on their face merely “move the court to set aside the verdict of the jury,” yet if they are treated hy the trial court as motions for a new trial they will he so treated on appeal.
    .2. COMMISSIONS: Sale of Property: Joint Contracts: Misjoinder. ' Where a contract was made with the stockholders of a corporation to sell its properties, if the contract was several, that is, if each one of them, for himself only, contracted and promised to pay the agents for the sale of the property, they could not be sued jointly by the agents for their commissions, ■ but suGh suit could be maintained against each upon his individual promise or contract. But in this case, while the conversations of defendants with plaintiffs were with defendants singly, each apart from the other, yet the .evidence tends to show that as a rule such conversations had some connection with or reference to other conversations previously had with the other defendant regarding the sale, and that on one occasion when defendants were together with one of plaintiffs, and with another on another occasion, they employed plaintiffs to sell the property, and hence the judgment will not he reversed on the ground that there was no joint promise hy defendants. The question of whether the contract was joint or several having been submitted to the jury on proper instructions, and the jury having hy the verdict in effect found it to he joint, and there being substantial evidence to sustain that view, it will not he disturbed.
    3. -: -: Assuming Debt. Where the sale included an obligation by the purchasers to pay a debt for which the sellers were personally liable, the fact that such debt was not paid did- not make it any the less a sale. Where the sellers themselves seemed to regard the sale as complete and it seemed satisfactory to them and their conduct thereafter indicates that they regarded it as a sale to all intents and purposes, that is all that is necessary to entitle the agent to his commission for making the sale.
    4. -: -: When Payable. A real estate agent is entitled to his commission when he.procures a purchaser able and willing to buy on the terms authorized hy the principal, and the purchaser is ready, able and willing to carry out such terms.
    5. — -: -: Concluded by Principal. Where the agent at the instance of the vendor is the procuring cause of the negotiations which result in a sale, he is entitled to his commission, even though the negotiations were conducted and concluded hy the principal in person.
    6. -: -: Reasonable Time. Where the agent and vendor did not agree upon the time within which the sale was to be made, but it was consummated by the vendor, he is in no position to say that it was not made within a reasonable time.
    7. -: -: Amount: Deferred Payments. The agent is entitled to the agreed per cent upon the amount for which the property was sold, whether all the price was paid at once, or some payments deferred. Nor is he required to wait for his commissions until the deferred payments are made, or until all the covenants of the purchasers are complied with.

      Appeal from Jasper Circuit Court. — Hon, Hugh Dabbs, Judge.
    Affirmed.

      Thomas Dolan for appellants.
    (1) Two separate several contracts were admitted in evidence to prove the joint contract declared on. The trial court erred in admitting, over the objections of appellants, evidence of the distinct, separate and several agreements of defendant Zentner, and the distinct, separate and several agreements of defendant Keller, to prove the joint contract of defendants declared upon in plaintiffs’ petition. Davis & Rankin v. Creamery Co., 63 Mo. App. 480; Davis & Rankin v. Barber, 51 Fed. 148; Davis & Rankin, v. Belford, 70 Mich. 120;, Frost v. Williams, 50 N. W. 964; Keith v. Cobb, 110 Ala. 618-; Lee v. Bolles, 20 Mich. 51; Jackson v. Bush, 82 Ala. 507; Jones v. Englehardt, 78 Ala. 396; Walker v. Ins. Co., 31 Ala. 529; Gamble v. Killum, 97 Ala. 680; Hudson v. Emmons, 107 Mid. 552; Addickson v. Schruble, 45 Iowa 316; Whittemore v. Merrill, 87 N. E. 416; 1 Greenleaf on Ev., sec. 66; 2 Greenleaf on Ev., see. 110. (2) There was no proof of the contract declared on. The plaintiffs, having declared upon a joint contract, failed in their proof, because there is no evidence of any contract or agreement with plaintiffs except the separate, several agreement of Zentner to which Keller was not a party, and the separate several agreement of Keller to which Zentner was not a party, as there was no partnership between defendants shown, nor was it shown that in any respect whatever did the relation of principal and agent exist between them; but the contrary was shown. The court, therefore, should have sustained the demurrer of Keller and Zentner to the plaintiff’s evidence, also their demurrers at the close of all the evidence. Davis & Rankin v. Creamery Co., 63 Mo. App. 480; Jackson -v. Burch, 82 Ala. 396; Keith v. Cobb, 110 Ala. 618; Jones v. Englehardt, 78 Ala. 505; Gamble v. Killum, 97 Ala. 680; Walker v. Ins. Co., 31 Ala. 529; Whittemore v. Merrill, 87 N. E. 46; Áddickson v. Schrube, 45 Iowa 316; Hudson v. Emmons, 107 Mich. 522; Lee v. Bolles,'20 Mich. 51. (3) The employment alleged was to sell the property of the brewing company. This, the evidence shows, was' not done. But instruction 1 assumed that it was done. Instruction .1 given for plaintiff should not have been given because it assumes that the property of the Brewing Company or stock of the stockholders was sold. This was a fact put in issue and the evidence was a contract in the nature of an option given to Keasbey & Dali by which Keasbey & Dali, in order to secure the stock of defendant Keller and Zentner, which was placed in.escrow, were to pay off all the debts of the corporation upon which Keller and Zentner were liable, not to exceed $30,000 and deliver to Keller ——— shares of the capital stock of Middle West Brewing Company and to deliver to Zentner--shares of the capital stock of Middle West Brewing Company, and the evidence showed that the stock was still in escrow, Keasbey & Dali having failed to do as agreed: It has been held that such an option contract does not constitute a .sale and that it furnishes no basis for a suit for commission by the broker employed to find a purchaser. Butts v. Ruby, 85 Mo. App. 406; Zeidder v. Walker, 41 Mo. App. 119. (4) The instruction 5 on the measure of damages is erroneous. The court erred in giving at plaintiffs’ Instance instruction 5 on the measure of damages; said instruction tells the jury to add to the amount of cash and stock the amount of the debts of the Joplin Brewing Company of every kind and description and reach a verdict for ten per cent.

      G. V. Buckley, Geo. Eubbert, W. Jones and R. G. Blair for respondents.
    No motion for a new trial appears in the printed record. And appellants can have no standing in this court upon any point not brought to the attention of the circuit court by such motion. While it is true that the record entries in the case purport to note the filing of motions for new trial, and the so-called bill of exceptions so recites likewise, yet when the motions are examined we find 18 reasons assigned as grounds, not for new trial, for each of the motions only and merely ■“moves the court-to set aside the verdict of the jury therein, for the reasons following, viz.: ’ ’ There is only one way that a party may be heard to ask for a new trial; the statute provides no collateral or indirect way, but a simple and direct way is provided as follows: Sec. 725. “The court may award a new trial of any issue, upon good cause shown,” etc. Sec. 803. “All motions for new trials and in arrest of judgment shall he made, within four days after trial. ” If a new trial be ■granted, that vacates the verdict by implication; but' the vacation of a verdict, if it may be done, is not awarding a new trial. Blackstone says: (p. *387) “If any defect of justice happened at the trial, by surprise, inadvertence, or misconduct, the party may have relief - ... by obtaining a new trial . . . Causes of •suspending the judgment by granting a new trial.” Bouvier’s definition of new trial: “A rehearing of the legal rights of the parties, upon disputed facts, before •another jury, granted by the court on motion of the party dissatisfied with the verdict of the previous trial, upon a proper case being presented for the purpose,” ■citing: 4 Chitty Gen. Prae., 30; Gra. & Wat. N. Tr., 32. If the objection to a verdict be its ambiguity, or that it cover only part or none of the issue, or immaterial Issue only, then the motion might be, for venire de novo, ■or repleader. 2 Ell. Gen. Prac., secs. 985, 986. “A motion for a new trial is an application made in the trial court for a retrial of an issue or issues of fact. It is direct and not a collateral motion.” 2 Ell. Gen. Prac., sec. 987; Hil. New Tr., sec. 1; Zalesld v. Clark, 45 Conn. 397. Anderson defines new trial to be “A re-trial, awarded for defeat of justice happening at the former trial, by surprise, inadvertence, or misconduct.” Tidd says: “But a general verdict can only be set right by a new trial, which is no more than having the cause more deliberately considered by another jury,” etc. 2 Tidd. Prac., *905. Our statute relating to appeals expressly provides that appeal may be taken from “any order granting a new trial, ’ ’ which shows the legislative view of the matter of new trials and how accomplished, R. S. sec. 806. And where the appealability of an order relating to nonsuit was held, it was upon the distinct ground that it was the £‘granting of a new trial” when there had been an order “ setting aside the judgment and granting another trial of the issues.” Coatney v. Railroad, 151 Mo. 40. The previous case, which was there followed, is not so explicit in the opinion as the terms of the order appealed from, but the brief of the losing party concedes the fact the order appealed from was one setting aside the nonsuit and granting a rehearing. But a motion to re-open a case, in order to proceed to offer evidence relating to the issues, is not a motion for £ ‘ new trial, ’ ’ within the meaning of our statute (although it would seem quite as nearly so as a motion to set aside a verdict; and, indeed, it would be a sort of new trial iu fact). Nelson v. Betts, 30 Mo. App. 10. Nor is the setting aside of a default judgment a new trial, within the statute, even if the court should so express in its order. Crossland v. Admire, 118 Mo. 87. We have not discovered any case ruling that a motion to set aside a verdict is a motion for the award of a new trial, and we submit that it cannot be so ruled under the common law or our statute; and we submit that the naming of the instrument a motion for new trial does not change its expressed object, nor enlarge its specific purpose as set out on its face; and that the sustaining of a motion to set aside a verdict would not be appealable under the statute. A judgment may be good without a verdict in some cases, yes, even non obstante veredicto. To award a new trial is to obliterate the results of the old trial, and vacate any judgment entered thereon. But it does not follow that the vacation of a verdict will accomplish more without a further order.
   BURGESS, P. J.

This is an action by J. J. Morgan and Henrietta Von Ronzelen, who sue under the firm name and style of J. J. Morgan & Co., as partners, and their co-plaintiff, W. H. Gault. At the trial, after plaintiffs’ evidence was in, the cause was dismissed as to L. P. Cunningham, who was an original party.

The petition alleges that in the month of December, 1900, plaintiffs were employed by the defendants, George W. Keller, Nicholas Zentner and L. P. Cunningham, who owned or were the principal stockholders in the Joplin Brewing Company, to sell certain property of the said Joplin Brewing Company, that is, all the property and assets thereof described as follows: certain real estate located on Main street and Virginia avenue, in Joplin, Jasper county, Missouri, and its brewery, ice plant, machinery, saloons and personal property used in and about the business of said brewing company, and that defendants agreed to pay plaintiffs the sum of ten per cent of the price which said property should be sold at to any purchaser or purchásers obtained or procured by the plaintiffs. That the plaintiffs thereupon undertook the sale of said property on behalf of defendants, and through their efforts, exertions and instrumentality, procured as purchasers for said property R. L. Dennison, C. A. Dali and F. "W. Keasbey, and that on the--day of March, 1902, said property was sold by the defendants to said purchasers. That said sale was made by tbe transfer of tbe capital stock held and owned by the defendants and others in said Joplin Brewing Company, and said property and assets were, sold by transferring all the said capital stock of the-defendants and other stockholders to the purchasers, thus procured by the plaintiffs, at and for the sum of' $87,500. That said sale was made to the parties procured and produced therefor by the efforts of plaintiffs. That the defendants individually employed and agreed to pay to the plaintiffs ten per cent on whatever sum said Joplin Brewing Company should be sold at by defendants to such purchaser or purchasers as should be produced and procured by the plaintiffs, and that upon such sale the defendants became indebted to the plaintiffs in said sum. • That plaintiffs have frequently demanded of the defendants that they pay the same to plaintiffs, but that they refused to pay said amount or any other sum. Wherefore, plaintiffs ask judgment for the sum of $8,750.

Each one of the defendants answered separately and denied each and all of the allegations in the petition contained.

The facts, briefly stated, are about as follows:

Plaintiffs, Morgan and Yon Ronzelen, were at the time of the making of said sale partners and brokers in the real estate business at Joplin. Plaintiff G-ault was also engaged to some extent in the same line of business and his services were engaged in the performance of the contract made by his co-plaintiffs for the sale of said brewery and other property connected therewith. In the latter part of November or the first part of December, 1900, the defendants employed plaintiff Morgan to sell the brewery plant of the Joplin Brewing Company, as before stated, agreeing to pay him a commission of ten per cent of whatever sum it should be sold for by him, Morgan, it being understood that he should not ask more than $100,000 for the entire property, the reason being that many other parties had had the property for sale, but had failed to sell it, as defendants stated, because they placed the price too high. Morgan’s firm took the matter up and communicated, personally and by correspondence, with prospective purchasers, sending out letters, prospectuses, etc., over the country to parties whom they thought might be interested in such property. Among others approached by Morgan on the subject was Mr. Linkelbihler, of Joplin, and also, through his partner, Mrs. Von Eonzelen, Mr. Busch of St. Louis. In the summer of 1901 he interested Mr. E. L. Dennison in the project. The latter went East where they saw F. "W. Keasbey and C. A. Dali, whom he brought to Joplin to look over the property. They were pleased with it, took' an option thereon, which was renewed until the 10th day of March, 1902, at which time they had paid on the property or options which they had obtained the sum of $700. On the said 10th day of March, they concluded the deal, taking over all the property, assets, book accounts, bills receivable and capital stock. For this they paid, as the purchase price of the entire property, to defendant Keller, $3,500; to Zentner, $5,000; to L. P. Cunningham, $2,500; to George Muennig, $500; to Seidenstricker, $100; making $11,600 in cash; and they assumed $30,000 of the company’s debts, or rather agreed to relieve defendants of their individual liability to that amount of the company debts. In addition, they gave Zentner $20,000, par value, in stock in the Middle "West Brewing Company, which they had organized; to Keller, $14,000 and to Cunningham $8,000 in like stock; making, in all, $83,600. They took charge of the brewery and began operating it. About the 25th day of March, 1902, some fifteen days after the completion of the sale, Morgan asked tbe defendants for a settlement of his commissions. They refused.

The trial of the cause took place before the court and jury, on January 21,1903, and resulted in a verdict for the plaintiffs in the sum of $8,468. Each of the defendants, Zentner-and Keller, filed separate motions for a new trial and in arrest, which being overruled, they saved their exceptions and by appeal bring the cause to this court for review.

Other facts in evidence will be stated, where thought necessary, in the course of the opinion.

The court, over the objections and exceptions of defendants, instructed the jury as follows:

“1. The court instructs the jury that if you find from the evidence that the defendants employed the plaintiffs to sell for them the Joplin Brewery Co. property, and agreed to pay them ten per cent on whatever sum it sold for, and the plaintiffs procured P. W. Keasbey and other parties to whom said property was sold, either direct or by transfer of the capital stock of the stockholders of said company, then you should find the issues in favor of the plaintiffs, and assess their damages at ten per cent of whatever sum said stock was. sold for, together with six per cent interest thereon from the time demand was made, if any demand was made, and if not, then from the time of the institution of this suit.

“2. The court instructs the jury that it is admitted by the pleadings that at the time so alleged in the petition the plaintiffs, J. J. Morgan and Henrietta. Van Ronzelen, were partners; and if you fia-d from the evidence that it was agreed between the plaintiffs that plaintiff G-ault should have a portion of the compensation, and you should further find from the evidence that the defendants, Keller and Zentner employed the plaintiff J. J. Morgan to negotiate a sale of the brewery property for them, or to- find a purchaser therefor, and agreed to pay him ten per cent of whatever sum it sold for, and you should further find from the evidence that through the efforts or instrumentality of the plaintiffs, or either of them, they procured P. W. Keasbey, R. L. Dennison and O. A. Dali, or either of them, to whom the defendants Keller and Zentner, and the other stockholders of the Joplin Brewing Company, sold their stock therein, either for cash or on credit, or part cash .and part credit, and part in stock in the Middle West Brewing Company, and in part to relieve the defendants, Keller and Zentner, of their liability on obligations for said Joplin Brewing Company, then yon will find the issues in favor of the plaintiffs, and assess their ■damages at ten per cent of the entire purchase price paid, or to be paid, for said Joplin Brewing Company, .and that without reference to the fact that defendants ■did not receive, or were not to receive, all the purchase price of said stock, but some part thereof was paid to •other stockholders of said Joplin Brewing Company.

<£3. You are instructed that it is only necessary in order to recover in this case for plaintiffs to have found or procured the purchaser for the brewery, after the same was placed in their hands for sale. It was not necessary for them to have conducted the sale; this may be done by the sellers themselves without the aid or presence of the plaintiffs, or any of them.

£ £ 4. Y ou can find the issues against both or either ■of the defendants, if warranted by the evidence. But if you find from the evidence that either of the defendants did not employ the plaintiffs to sell the property and you should further find from the evidence that one of the defendants did employ them, and agreed to pay them ten per cent for their services on whatever sum the property sold for to the purchaser found by them, then you should find the fall amount of ten per cent of the purchase price against the defendant or defendants ^so employing the plaintiffs, regardless of the particular amount or proportion of the purchase money received by such defendant or defendants.

' ££5. In determining the purchase price at which •the property sold, if you find for the plaintiffs, you are to ascertain from the evidence the cash paid by the purchasers to all of the stockholders of the Joplin Brewing Company, if any, together with the debts of every kind of said company, if any, either paid or assumed to be paid by the purchasers, and to that add the reasonable value of the capital stock in the Middle "West Brewing Company taken or agreed to be taken by the defendants, if any, which value you are to find from the evidence, and on the total amount cast ten per cent as the amount of your verdict.

“6. The court instructs the jury that, although you believe from the evidence that plaintiffs were not to sell the property for less than $100,000’, yet if you further find from the evidence that defendants voluntarily reduced the price or changed the terms in their sale to Keasbey and others, still the plaintiffs are entitled to recover, provided you find for them under the evidence and other instructions in the case.

“7. The court instructs the jury that if you believe from the evidence that the defendants placed the property in question in the hands of plaintiffs for sale,, and that plaintiffs, or either of them, brought about the sale, by introducing the purchasers, whereby a sale was perfected with defendants, then and in that case plaintiffs would be entitled to their commission agreed upon, even though you may believe that the defendants sold said property to said purchasers at a less price than the amount at which plaintiffs were to offer said property. ’ ’

The court, at the request of the defendants, gave the following instructions:

1. The court instructs the jury that in order for plaintiff to recover in this case it is necessary for them to show by a preponderance or greater weight of the evidence that the said Keasbey and Dali were able,, ready and willing to carry out their contracts of purchase made with defendants, and in determining the' question as to whether said Keasbey and Dali are able,, ready and willing to carry out the said contract of purchase, you may take into consideration the fact that they have not paid off the said debts of the Joplin Brewing Company, required to be paid by their contract of purchase, along with all other facts and circumstances in the case, and unless you. find and believe from a preponderance or greater weight of the evidence that said Keasbev and Dali, at the time of the commencement of this suit, were able, ready and willing to comply with said contract of purchase; you should find for the defendants. ’ ’

The defendants asked the court to give the following instruction:

‘ ‘ The court instructs the jury that before you can find in favor of the plaintiffs in this ease, you should believe from the preponderance or greater weight of the evidence that there was a joint employment by defendants of the plaintiffs to procure a purchaser for the property of the Joplin Brewing Company.”

Which said instruction was by the court given, after having been by the court changed, altered and modified to read as follows:

“2. The court instructs the jury that before you can find in favor of the plaintiffs, against both defendants, Gr. W. Keller and N. Zentner, in this case, you should believe from the preponderance or greater weight of the evidence that there was a joint employment by defendants of the plaintiffs to procure a purchaser for the property of the Joplin Brewing Company.”

To the changing, altering and modifying of said instruction the defendants at the time excepted.

The defendants asked the court to give the following instruction:

“The court instructs the jury that if they believe from the evidence that N. Zentner, defendant, placed or fixed the price with plaintiffs to be received for the property at one hundred thousand dollars, and promised to pay ten per cent commission if the sale was made, for said sum, the plaintiffs cannot recover from the defendants. ’ ’

Which said instruction was by the court given, after having been by the court changed, altered and modified to read as follows:

“3. The court instructs the jury that if they believe from the evidence that N. Zentner, defendant, placed or fixed the price with plaintiffs to be received for the property at one hundred thousand dollars, and promised to pay ten per cent commission if the sale was made for said sum, the plaintiffs cannot recover, and you should find for the defendants, unless you further find defendants varied or changed said price from that of the first negotiations with the plaintiffs.”

To the changing, altering or modifying of said instruction the defendants at the time excepted.

Defendants asked the court to- give several additional instructions, all of which were refused, but as no point is made upon any of the refused instructions except one, number 15, that only will be incorporated in this opinion. It is as follows:

“15. The court instructs the jury that no time being fixed for the plaintiffs to procure a purchaser or purchasers for the property of the Joplin Brewing Company, if the jury believe that plaintiffs were employed to procúre a purchaser or purchasers within a reasonble time, and unless you believe from a preponderance or greater weight of the evidence that said purchasers were produced in a reasonable time, you should find for the defendants. ’ ’

The first question with which we have to deal is the failure of defendants, as plaintiffs contend, to file a motion for a new trial, in the absence of which there is nothing before ns for review other than the record proper. It is conceded by plaintiffs that the record entries in the case purport to note the filing of motions for new trial, and that the bill of exceptions also so recites; but they assert that the motions, upon their face, merely “move the court to set aside the verdict of the jury,” for reasons assigned in such motions, and that as they do not ask for a new trial, they are, therefore, ineffectual for any purpose. Under our practice, the setting aside the verdict of a jury is in effect the granting of new trial. When the verdict is set aside in a law case, there is nothing upon which to base a judgment, and the case stands just as if no trial had been had. But suppose, as' in the case at hand, the motions to set aside the verdict are overruled, not upon the ground that they do not ask for a new trial, hut upon other grounds, and the court in this way and in all orders respecting such motions, as well also as in the hill of exceptions, recognizes and refers to them as motions for a new trial, should it he held that they are not motions for a new trial? We think not. They were in effect motions for a new trial, which could not have been had unless the verdict was first set aside, in which event a new trial follows as a matter of course. The motions we think sufficient, more especially when recognized and treated by the trial court as such.

The first assignment of error by defendants is with regard to the action of the court in admitting, over their objection, evidence of distinct, separate and several agreements of defendant Zentner, as well also as of defendant Keller, to prove the joint contract of defendants declared upon in plaintiffs’ petition. The defendants are not sued as partners, and before they can he charged as joint promissors or contractors it must appear from the evidence that they jointly agreed with plaintiffs to pay the latter, for the services to he rendered by them in the sale of the property described in the petition, ten per cent of the purchase price or amount realized upon such sale. If defendants were joint contractors or promissors, they could, under our statutes (sections 889, 892, R. S. 1899, which change the common law rule), be sued either jointly or separately. But if the contract was several, that is, if each one of the defendants for himself only, contracted and promised to pay for the sale of the property, sneh an one conld not be sued jointly with the other defendants, bnt a suit conld be maintained against each npon his individual promise or contract.

While most of the conversations of defendants with plaintiffs, respecting the contract for the sale of the property, were conversations with defendants singly, each apart from the other, and there were statements and admissions by defendants, respectively, in evidence tending to show that they were of the character complained of; yet, as a rule, and as the evidence showed, such conversations had some connection with or reference to other conversations previously had with the other defendant regarding said sale. There also was evidence which tended to show that Zentner and Keller, when together with Gault on one occasion, and with Morgan on another, employed plaintiffs to sell the property. The judgment should not, therefore, be reversed upon that ground.

Instruction numbered one, given for plaintiffs is complained of on the ground that it assumes that plaintiffs effected a sale of the property, when in fact, as defendants contend, there was no sale. This contention is bottomed upon the theory that the contract for the disposition of the property was in the nature of an option given to Keasbey and Dali, under which they, in order to secure the stock of defendants Keller and Zentner, in the Joplin Brewing Company, which was placed in escrow, were to pay off all the debts of the corporation upon which Keller and Zentner were liable, not to exceed $30,000, and deliver to Keller — shares of the capital stock of the Middle West Brewing Company, and deliver to Zentner — —shares of said stock although the evidence showed that the stock was still in escrow, Keasbey and Dali having failed to do as agreed. It is true it was an option at first, but when the sale was completed it ceased to be such. At any rate, it seemed to be satisfactory at the time to the owners of the property, and their conduct then and afterwards' would more than indicate that they regarded it as a sale to all intents and purposes, and that was all that was necessary to entitle plaintiffs to their commission.

In Gelatt v. Ridge, 117 Mo. 553, it — is held that a real estate agent performs his duty, and is entitled to his commission, when he procures a purchaser able and willing to buy on the terms authorized by the principal, and the purchaser is ready, able and willing to carry out such terms. [Childs v. Crithfield, 66 Mo. App. 422.] It is also held that where the agent is the procuring cause of the negotiations which result in a sale of property at the instance of the vendor,'he is entitled to his commission, even though the negotiations were conducted and concluded by the principal in person. [Bell v. Kaiser, 50 Mo. 150; Timberman v. Craddock, 70 Mo. 638.] It is said for defendants that instruction number two, given for plaintiffs, is erroneous and should not have been given, because “employment” by defendants presupposes a joint employment, and there was no evidence to that effect. While the evidence was conflictng upon this feature of the case, there was some evidence which tended to show a joint employment sufficient possibly to take the case to the jury. It is further contended that this instruction, as to the measure of damages, is in conflict with plaintiffs’ instruction number five upon that subject, in that instruction number two tells the jury to take as,part of the estimate of damages ten per cent of the amount of the debts of the Joplin Brewing Company from which Keller and Zentner were to be relieved as sureties, while number five tells the jury that they should take into account ten per cent of the debts of every kind of said company, when, in fact, there was no evidence as to what was the amount of the debts from which Zentner and Keller were to be relieved, nor any evidence as to the amount of the debts of every kind of said company. With respect to the last proposition, the evidence shows that at the time of the sale of the property to Keasbey. and Dali the debts of the company were in the neighborhood of $30,000; and it is further shown by the evidence that this indebtedness was assumed by Keasbey and Dali, and that in this way defendants Zentner and Keller were freed from any liability on account of said indebtedness. According to the written contract entered into between the parties at the time of the sale, the purchasers of the property agreed to relieve Zentner and Keller of all personal liabilities theretofore incurred by them as indorsers of the paper, notes or other obligations of the Joplin Brewing Company, the same not to exceed thirty thousand dollars; so that it is clear there is no real conflict between the instructions named.

The time in which plaintiffs were to make the sale was not agreed upon between the parties, nor was any time fixed by defendants, and as defendants consummated the sale which was brought about by the plaintiffs they are in no position to claim that it was not made within a reasonable time. There was no error, therefore, in the refusal of the instruction asked by defendants upon that proposition. Nor is there any merit in the contention that the verdict of the jury is excessive. If the plaintiffs were entitled to recover anything at all, it was ten per cent of the amount for which the property was sold, whether the terms of the sale agreed upon by the owners of the property and the purchasers were complied with or not. The agents were not guarantors of deferred payments or covenants but were entitled to their commission when they furnished the buyers and the sale to them was consummated. They did not have to wait until all deferred payments were paid, and all covenants on the part of the purchasers complied with. The instruction given for defendants upon this feature of the case was more favorable to them than authorized by the law of the case.

The only question in the case in regard to which we entertain any doubt is as to whether the contract sued upon is joint or several. This question was, however, submitted to the jury by the instructions, and the effect and meaning of their verdict is that it is joint. There was some substantial evidence to support the verdict, and under such circumstances we cannot interfere, whatever may be our views regarding the matter.

Finding no reversible error in the record, the judgment is affirmed.

All concur.