text:
    THE STATE v. ALBERT G. BUTLER, Appellant.
    Division Two,
    May 26, 1914.
    1. EVIDENCE: Homicide: Accused’s Reply to Accusation Soon After the Killing. A -witness who had seen the accused shoot deceased, at once went up to the accused and said, “What did you shoot that man forf’ Accused said, “He was going to kill me!” The witness then said, “He had no idea of hurting you,” and the accused exclaimed, “Lord, Lord, what have I done!” Held, that the conversation is admissible — that portion of it whereby the witness told the accused that the deceased had no idea of hurting him, as explaining the answer made thereto by the accused. Furthermore, when the conversation occurred, the accused was not under arrest or restraint and hence the accusation made against him, together with accused’s silence, demeanor, or the answer made by him, other than a denial of the charge or accusation, were properly admissible as evidence, the probative weight and effect of the same to be determined by the jury.
    2. REMARKS OF COUNSEL: Objection Sustained: No Exception: Appeal. Where, in the trial of a criminal case, accused’s counsel objected to remarks made by the State’s attorney in his argument, and thereupon the court fully sustained the objection and instructed tbe jury to disregard the remarks, and counsel made no further request and saved no exception, there is no ground for reversal under the circumstances of this case.
    3. -: Calling Deceased Father of Family. Where upon the trial of accused for murder, it appeared that deceased was the acting head of the family, his father living away from home; that just prior to the killing a quarrel was in progress in the yard of deceased’s home between, the accused and other members of deceased’s family; that during this quarrel deceased’s sister screamed and called the accused a liar, and that, immediately thereafter, deceased came rushing out of the house and lost his life while advancing toward the accused, the State’s attorney did not exceed the bounds of legitimate argument when he said, “This young man, a young man in the prime of life, the little father of that family, has given up his life for the good name of his family.”
    Appeal from St. Louis City Circuit Court. — Ron. William M. Kinsey, Judge.
    Affirmed.

      Frederick A. Mayhall and Fauntleroy, Cullen S Ray for appellant.
    (1) The court erred in allowing the witness Mosby, who witnessed the shooting, to state to the jury that in his opinion deceased had no idea of even hurting defendant. Under the guise of introducing a conversation with the defendant, the witness was permitted to repeat statements he had made in the presence of the defendant and to give to the jury his opinion as to the conduct of the deceased (which he had witnessed) at the time the shooting occurred. This was grievous error, and such has been the express holding of this court upon a similar state of facts. State v. Foley, 144 Mo. 600; State v. Glahn, 97 Mo. 694. Under such circumstances the defendant should not be held responsible for the statements of a third-party. Gibbons v. Territory, 115 Pac. 129; People v. Morton, 139 Cal. 719; State v. Robinson, 51-La. Ann. 694; Brown v. State, 78 Miss. 637; Low v. State, 108 Tenn. 127; Lawson v. State, 20 Ala. 65; Rolfe v. Rolfe, 10 Ca. 143; Moore v. Smith, 14 S. & R. 388; Vail v. Strong, 101 Vt. 457; Mattlocks v. Lyman, 16 Vt. 119; Comm. v. Kenney, 12 Met. 237; Wiedeman v. Walpole, 20 B. 534, 539. Under the circumstances in proof in this case the defendant was not charged with any duty to speak and hence no presumption can be indulged that he assented to what the witness said. Rubber Co. vl Rothery, 107 N. Y. 310', 1 Am. St. 822; V'eile v. Judson, 82 N. Y. 32; State v. Glahn, 97 Mo. 694. (2) The remarks of counsel referred to herein are condemned by a long line of decisions of this court. State y. Webb, 253 Mo. 302; State v. Hyde, 234 Mo. 200; State v. Hess, 240 Mo. 160; State v. Baker, 246 Mo. 376; State v. Clapper, 203 Mo. 553; State v. King, 174 Mo. 647; State v. Spivey, 191 Mo. 112; State v. Young, 99 Mo. 666; State v. Jackson, 9'5 Mo. 623; State v. Fischer, 124 Mo. 460; State v. Bobbst, 131 Mo. 328-.

      John T. Barker, Attorney-General, and Thomas J. Higgs, Assistant Attorney-General, for the State.
    (1) The defendant alleged error in allowing the witness Mosby to state to the jury a conversation in which witness, Mosby, said: “He had no idea of hurt-* ing him,” contending that such admission was error in that the witness was permitted to express his opinion as to the conduct of the deceased (which he had witnessed) at the time of the shooting. In support of this contention appellant has cited the cases of State v. Foley, 144 Mo. 600, and State v. Glahn, 97 Mo. 694. In the case of State- v. Foley, the statement admitted in evidence was that of a witness by the name of Land as to a conversation' had- with the defendant while he, the defendant, was a- prisoher in jail and at a time about two months affer -the - homicide. • The-witness, Land, was' permitted in Alié;; trial to detail a conversation which contained opinions formed by Land from the evidence before the coroner’s jury," and to much of which defendant made no reply. Against the protest of the prisoner the witness assured the prisoner of his conviction of guilt and summed up, by way of argument, each and every damaging circumstance tending to show the defendant guilty. The facts in the Foley case are entirely at variance with the facts in the case at bar. The decision of the court was to the effect that a lengthy narration of accusations to the defendant in custody without a denial should not be admitted in evidence. The Foley case has been considered by "this court and cited with approval to support cases wñere statements and accusations were made to the defendant while under arrest and to which defendant did not reply, but remained silent. Under these circumstances it has been held that the silence of the defendant should not be considered an admission. State v. Ethridge, 188 Mo. 358. State v. Grlahn, 97 Mo. 694, relied upon by the appellant, is not in point, for there was no response to the statement as made by the witness, and although made in the presence of the defendant, it was not such a statement as called for action or reply. In other words, the silence of the defendant was no evidence against him, under these circumstances. In the case at bar the statement of the witness, Mosby, did call for a reply and was a direct accusation that the appellant shot the deceased without provocation, and even though it did not call for a reply, the appellant made the statement, “Lord, Lord, what have I done,” and did not remain silent as in the case of State v. Grlahn. The statement of the witness was admissible as part of the res gestae. Kelly’s Crim. Law and Prac. (3 Ed.), sec. 277; State v. Walker, 78 Mo. 386; State v. Elkins, 101 Mo. 351; State v. Dnnkan, 116 Mo. 288; State v. Lockett, 168 Mo. 485; State v. Baker, 20-9 Mo. 450; State v. Kelleher, 201 Mo. 614; State v. McKenzie, 228 Mo. 399; State v. Kaizer, 124 Mo. 641; State v. Jacobs, 133 Mo. App. 184. Voluntary statements and admissions of the defendant to third persons when not a part of the res gestae are admissible in evidence. State v. White, 189 Mo. 351; State v. Wilkins, 221 Mo. 445; State v. Witherspoon, 231 Mo. 721. When statements of the court are admissible in evidence the whole conversations are admissible as evidence. 12 Cyc. 426. A statement made direct to the defendant when not under arrest, charging the commission of a crime, is admissible, even though there be no response. A failure to deny the accusation is a tacit admission of guilt. State v. Walker, 78 Mo. 388; People v. McCrea, 32 Cal. 98; State v. Reed, 62 Mo. 128; Newton v. State, 39 Ala. 523. A confession or admission may be implied by silence or acquiescence of the prisoner when statements are made in his presence.and hearing relative to a fact within his knowledge implicating the defendant with a crime. State v. Watson, 13 Mo. 30 ; State v. Shannon, 33 Mo. 596; State v. Miller, 49 Mo. 505; State v. Hamilton, 55 Mo. 520; State v. Walker, 78 Mo. 380; State v. Talmage, 107 Mo. 567; State v. Lehman, 182 Mo. 424. We are inclined to be of the opinion that this conversation is admissible, both as a part of the res gestae and on the theory that it was a statement or accusation to which the defendant made a reply which would be of probative value to indicate to.the jury an assent to the statement made by Mosby. (2) Interference with counsel in his argument is discretionary with the trial court and the appellate court will not review such discretion unless it appears that the rights of the prisoner-were actually prejudiced. State v. Hamilton, 55' Mo. 520; State v. Hibler, 149 Mo. 484; State v. Allen, 451 W. Va. 65; Inman v. State, 72 Gfa. 269 ; Combs, v. State, 75 Ind. 215; Ford v. State, 34 Ark. 649!; State v. Turner, 36 S. C. 534. Courts are slow to reverse judgments on account of improper remarks of attorneys, especially as in this case where the proof is clear, because in such cases a verdict of guilty would have been returned regardless of the improper remarks. State v. Dietz, 235 Mo. 332; State v. Harvey, 214 Mo. 403; State v. Church, 199 Mo. 605; State v. Hibber, 149' Mo. 478.; State v. Sumner, 143 Mo. 220; State v. Dusenberg, 112 Mo. 277; Sec. 5115-, R. S. 1909; State v. Emery, 79 Mo. 463. As a general rule the withdrawal of the objectionable remarks of the prosecuting attorney, either by himself or by the court, or a direction to disregard them, is deemed to have removed the prejudice and cured the error. State v. Gartrell, 174 Mo. 489; State v. McMullen, 170 Mo. 608 ; State v. Wright, 141 Mo. 333; State v. Hack, 118 Mo. 92; State v. Gibbs, 10 Mont. 213; Dunlap v. United States, 165' U. S. 486; People v. Benham, 160 N. T. 402.
   WILLIAMS, C. —

On June 11, 1913, in the circuit court of the city of St. Louis, defendant' was convicted of murder in the second degree and his punishment assessed at ten years in the penitentiary. This is the second appeal in the case. The judgment upon the first trial was, by this court, upon appeal, reversed, on account of certain errors not now involved. The facts disclosed by the present record are in substance the same as disclosed by the record of the first trial and áre fully set forth in the former opinion by this court in 247 Mo. 685. It is, therefore, unnecessary to restate the same here.

As grounds for a reversal of the present judgment, appellant contends that error was committed-: (1) in the admission of certain testimony given by witness Mosby; (2) .by improper remarks made by one of the State’s counsel in making the closing argument to the jury.

I. Witness Mosby testified upon the part of the State that he saw the shooting and heard some quarreling between defendant and others in front of the Walsh home just prior to the shooting; that he walked down the sidewalk beyond the Walsh premises and upon hearing a “scream” turned around and looked back toward the Walsh home and saw defendant walking backwards away from the Walsh home and saw deceased going toward defendant with one arm extended, but did not see the other hand; that when deceased had approached within four or five feet of defendant, defendant drew a revolver from his pocket and shot deceased. After the shot was fired, defendant ran diagonally across an adjoining lawn and down the street until he was stopped by a man named Brown. Mosby went up to where defendant was standing and, in the language of the witness, the following occurred: ‘ ‘ When I first came up to him (defendant), I said, ‘What in the world did you shoot that man for?’ and he said, ‘He was going to kill me!’ I said, ‘He had no idea of hurting you,’ and then he said, ‘Lord, Lord, what have I done.’ ”

Appellant objected to the admission in evidence of that portion of the conversation whereby witness told defendant that deceased had no idea of hurting defendant, on the ground that it was a conclusion or opinion on the part of the witness as to the conduct of the deceased. The court overruled the objection and defendant saved-an exception. The court did not commit error in admitting this evidence. It was a part of the conversation had with the defendant and what the witness said was admissible as explaining the answer made thereto by the defendant. [State v. Talmage, 107 Mo. 543.] Furthermore, at the time of the occurrence of the conversation detailed in evidence, defendant was not under arrest or restraint and hence the accusation made against him, together with defendant’s silence, demeanor, or answer made by him, other than a denial of the charge or accusation, were properly admissible as evidence, the probative weight and effect of the same to be determined by the jury. [State v. Swisher, 186 Mo. 1; State v. Hill, 134 Mo. 663; State v. Lovell, 235 Mo. 343.]

It is further claimed by appellant, however, that the statement made by witness Mosby was not such a statement as called for any reply upon the part of defendant. We are unable to agree with this contention. The. statement was in the nature of ¿n accusation in that it, in effect, questioned defendant’s right to shoot in self-defense; furthermore, defendant did make reply thereto.

II.. Appellant, at three different times, objected to remarks made by one of the State’s attorneys in his argument to the jury and further requested G0ixrt to reprimand counsel and to instruct the jury to disregard said remarks in their consideration of the case. On two of these occasions, the court fully sustained appellant’s objection and instructed the jury that they must disregard the remarks made. Appellant made no further request nor saved any exception on the ground that the action of the court was not sufficient to right the wrong. It is, therefore, to be assumed that appellant considered the action of the court sufficient in that regard. We have reached the same conclusion. Furthermore, absent such objection and exception, it is the well-established general rule that the remarks of the attorney will not necessarily cause a reversal of the case. [State v. McMullin, 170 Mo. 608; State v. Phillips, 233 Mo. 299; State v. Souva, 234 Mo. 566; State v. Rasco, 239 Mo. 535; State v. Wana, 245 Mo. 558.]

The remarks and conduct of the attorney in the present case were not of such character as to call for the application of the rule applied in the recent case of State v. Webb, 254 Mo. 414.

On the other occasion the court overruled appellant’s objection and request concerning the remarks made by State’s counsel. The remarks to which reference is here made were as follows: “This young-man, Walsh, a young man in the prime of life, the little father of that family, has- given up his life for the good name of his family.” The evidence showed that the deceased was the oldest child of Mrs. Walsh and was the acting head of the family — ;the father of the family living away from home. The evidence further showed that on this Sunday afternoon, just prior to the killing, a quarrel was in progress in the Walsh yard between defendant and other members of the Walsh family and that during this quarrel deceased’s sister screamed and called defendant a liar and that, immediately thereafter, deceased came rushing out of the house, evidently as a protector of the family, and lost his life while advancing toward defendant. Under such facts, the above remarks did not exceed the bounds of legitimate argument.

The foregoing are the only points urged by appellant in his brief, but we have carefully reviewed the entire record in the case and fail to find any matter of error which should call for a reversal of the judgment. It is therefore ordered that the judgment be affirmed.

Roy, G., concurs.

PER CURIAM. —

The foregoing opinion of Williams, C., is adopted as the opinion of the court.

Walker, P. J., and Brown, J., concur; Faris, J., not sitting.


source: Caselaw Access Project

author: ROY, C. — PER CURIAM. —

license: Public Domain

text:
    W. L. CARTER and BELLE CARTER, Appellants, v. S. E. CARTER and CHAS. A. BYRD.
    Division Two,
    May 26, 1914.
    SUIT TO CANCEL DEED: Fraud: Fiduciary Relation: Mining Lands. Evidence in a suit to cancel a deed held not to show fraud in the grantee, who was the agent and fiduciary of the grantor, in procuring such conveyance, including lands which afterward grew in value from discoveries of mineral.
    Appeal from Jasper Circuit Court.— Hon. D. E. Blair. Judge.
    Aeeirmed,

      H. W. Gurrey for appellants; W. J. Owen and George V. Farris of counsel.

      George Hubbert, Frank L. Forlow and Howard Gray for respondents.
   ROY, C. —

This is a proceeding to cancel a deed on the ground of an alleged fraud of the grantee in procuring it. There was a decree for the defendants, and plaintiffs have appealed.

Washington Carter died intestate in 1874, owning 538 acres of land northwest of and adjoining Webb City. He left a widow who died in 1887. His son G-eorge died about 1882 intestate and without ever having been married. Another son, A. G-. Carter, died in 1903, leaving a widow Harriet and a minor son, George. The surviving children of Washington Carter are the defendant S. Elmore Carter, the plaintiff Wm. L. Carter, Mary Leslie and Laura Miller. The plaintiffs are husband and wife, the wife having no interest in the property except her inchoate right of dower. Defendant Byrd is the son-in-lgw of his cqdefendant. Where not otherwise indicated, we shall hereafter speak of Wm. L. Carter as the plaintiff and of S. E. Carter as the defendant, as the controversy herein in mainly between those two.

S. E. Carter was fifty-four years old at the time of the trial in 1909 ; the plaintiff was forty-one. The plaintiff lived on the land in controversy from his birth until about 1896. He was married in 1890, and from that time had charge of the farm, cultivating it and paying rent to the other heirs. In 1896 he moved to another farm several miles distant and in 1898 bought a farm in McDonald county, on which he lived until after the transaction in controversy. Mining for lead and zinc on the Carter land began about 1887. In 1890 the defendant and his brother A. G-. Carter took a mining lease on the land from the other heirs. They subleased various portions of it; and mining operations were carried on in an intermittent way until the time of the making of the deed in controversy. Prior to the making of that deed some very valuable mines were opened on the land adjoining the Carter land on the east and south. After the death of A. G-. Carter, the defendant had charge of the land as the agent and representative of the other heirs and as lessee under the mining lease.

On November 30, 1904, the plaintiffs signed and acknowledged a deed which purported to convey the undivided fifth of the land to defendant C. A. Byrd for the expressed consideration of $10,760'. That deed was not then delivered, but was in escrow in a bank in Webb City, to be delivered upon the payment of the consideration named. The circumstances under which that deed was placed in escrow were as follows: Defendant represented to the plaintiff that he was negotiating for the sale of the land at one hundred dollars an acre, and that he was anxious to sell at that price, stating that he wanted the other heirs to put their deeds in escrow in the bank so the deal could be closed when the parties were ready. The envelope enclosing that deed had the following indorsement:

“November “30, 1904.
“The enclosed deed from me to Chas. A. Byrd may be delivered to him upon payment to "Webb City Bank, of Webb City, Mo., for me, on or before one year from the date hereof of the snm of ten thousand seven hundred and sixty dollars ($10',760), otherwise to be returned to me.
“W. L. Carter., Neosho, Mo., Route 3.”

After the expiration of the year, the deal not having been closed, on the request of the plaintiff, the bank returned the deed to him. Sometime in January; 1906, the defendant visited the plaintiff at his home in McDonald county. Plaintiff and defendant went to Neosho together; and while at that place the following so-called option was executed:

“This agreement made and entered into by and between S. E. Carter and W. L. Carter that in consideration of one dollar and other valuable consideration do hereby agree that if S. E. Carter pays to W. L. Carter $8000 and deeds to him his 35/96/100 acres of land west of Waco, Jasper county, Mo., that W. L. Carter will deed to S. E. Carter upon request all of his undivided one. fifth interest in 538. of land about two miles west of Webb City, Mo., in section 1 and 12 Jasper county, Mo., on or before the first day of May, Í906.
“S. E. Carter.
“W. L. Carter.”

That tract of land west of Waco will hereafter be called the Waco land. It had belonged to S. É. Carter and A. G-. Carter. The latter had conveyed his half in 1903 to the former for $600:

About February 9, 1906, plaintiff took the deed that had been previously signed by him and his wife to Webb City. S. E. Carter assigned his option to his co-defendant Byrd on February 8, 1906, and on February 9 be and bis wife executed a deed for tbe Waco land called for in tbe option and placed it in escrow in the bank. Sometime in April thereafter the deal was closed by tbe payment of $8000' to tbe plaintiff and by tbe delivery to him of tbe deed for tbe Waco land and by tbe delivery of tbe deed from tbe plaintiffs to Byrd.

Tbe petition alleges that tbe defendant bad charge of tbe land, collecting rents, paying taxes, and remitting to tbe heirs tbe net amounts due them respectively. That tbe defendant bad superior knowledge of mining land and that tbe plaintiff bad no knowledge of tbe value of lands for mining purposes. That zinc ore bad been discovered at different places on tbe Carter land of such richness as to make it very valuable. That tbe defendant knew of such facts and that tbe plaintiff did not. That tbe plaintiff relied on tbe defendant’s judgment and honesty.

Tbe fraudulent statements alleged to have been made by defendant are as follows: that tbe land was of little value; that tbe mineral developments on tbe Carter land and on tbe adjoining land did not amount to anything; that tbe rains and floods destroyed tbe agricultural value of tbe land; that tbe defendant wanted to sell bis interest in tbe land at tbe rate of one hundred dollars an acre, making one-fifth thereof amount to $10,760; that if plaintiff did not sell, be, defendant, would proceed to partition tbe land, and that tbe purpose of putting tbe deeds in escrow in tbe bank in tbe name of Byrd was for tbe purpose of having Byrd make a deed to tbe purchaser when tbe deal was closed, and that $8000 and tbe Waco land was all be could afford to give for plaintiff’s interest.

Tbe petition also alleged that at tbe time tbe deed was delivered, tbe defendant bad given options on tbe land at tbe rate of $300 or $400“ an acre.

The petition alleges that said representations were false and known to be false by the defendant and that plaintiff did not know of such falsity. The answer pnt those allegations in issue.

In July, 1905, defendant purchased the interest of his sister, Laura Miller, in the land for $3500. Shortly after that purchase, Mrs. Miller sued him for the purpose of canceling that deed in the Federal court at Joplin. In May, 1906, he compromised with her by paying her an additional sum of $8760. About December 9, 1905, he purchased the interest of his sister, Mrs. Leslie, who lived in Alaska, for five thousand dollars. She sued to cancel that deal, resulting in a decree in her favor, affirmed by this court in the 240 Mo. 552,

In February, 1906, at about the same time with the closing of the deal with plaintiffs, Byrd purchased the interest of the widow and minor heir of A. G-. Carter, for $10',7601, paying one half to each. The deed from the curatrix of the minor heir was declared void by this court in Carter v. Carter, 237 Mo. 624. The defendant soon after his marriage in 1876 moved to a farm of his own about six miles from Webb City and remained there until 1902, when he moved to Webb City. He was to some extent interested in mining, and the evidence indicates that he had prospered in that business.

The following letter was put in evidence by the plaintiffs:

“Webb City, Mo., December 21,1905.
“W. L. Carter, Neosho, Mo. Dear Brother: I was expecting you to come up last monday or tuesday I thought you would likely go with some of the boys to the Pandhandal Country I have tryed to arrange to go my self but the Litigations that we have gotten into in the Monticello mine and the Miller Litigation has detained me thus far but I hope to make this trip in the near future. William I have some parties that say that they will Lease some of the old home piase if they can get a Lease for 15 years they think 10 years not long enough if I can induce them to do this would you join me in making this lease and you get the same Royalty as I do after the lease I hold from you expires I believe this would induce them to go on the land you see I have a lease from Betty and george for a longer period than from you and have bought Maryes interest in the old home farm and you are the only one that I would have to consult in this matter of a longer time and i think it would be a great inducement to get operators on our ground we will have to do something to keep them interested the Rosin jack mill shut down in a day or to after you was hear and is still down and the parties that work thare say the ore baring ground is not over 18 in thick this loks very bad to see a mill like that on a property standing idle I have succeeded in getting another mill started. I do not know what this will amount to I hope it will succeed better than the others. I do hope that some of them at lease will find a mine that will make them money for if they can find a good mine it would change the cituation some what’ in our favor .I have fears that the ozark Co will not last very long the big pump is not yet put in and I have ben informed that they like the necessary fundes to go ahead as they should and this is why i do not think it advisable to let any chance slip.
“Yours truly, S. E. Carter.’’

The plaintiff testified that the defendant told him prior to making the option that Mrs. Miller had sued him claiming that he had beat her out of her interest in the land.

Plaintiff’s wife and son testified that when he got back from the trip to Neosho at the time the option was made with the defendant the plaintiff was drunk. Plaintiff testified that defendant- had a quart bottle of whiskey on that occasion and that they both drank out of it. But he further testified that plaintiff first offered him $5000, then $6000, which plaintiff refused, and that defendant then offered .$8000' and the Waco land, which he accepted. He further stated that, he wrote a copy of the option at the time and signed and delivered it to the defendant. He also testified that when he made that option he exercised his own judgment. In his testimony in regard to the mining that had been done on the Carter land prior to closing the deal in controversy, the following occurred:

‘ ‘ Q. When you delivered these deeds and options you knew these companies had all gone and moved their mills off, you knew that? A. Yes, sir.”

Plats were put in evidence showing that Center Creek runs in a serpentine course through the land and that there are several sloughs and much overflowed land, and that several branches run into the creek through the farm. As near as can be gathered from the evidence the rents of the land for agricultural purposes were three hundred dollars a year or a little more.

During the Christmas holidays, 1905, plaintiff made a trip to Texas. Mr. J. B. Davis was with plaintiff on that trip and was a witness for plaintiff. On cross-examination he stated that while on the trip he told plaintiff of the sale of the Lee eighty acres a quarter of a mile south of the Carter land for about $23,000, and of the Wilson land adjoining the Carter land on the south at $1000 an acre, and also told him that he (witness) had been offered $200 an acre for his land close by. Plaintiff was afterward placed on the stand when the following occurred on direct examination:

‘ ‘ Q. Before I forget it, there was something said here — You heard the testimony of Mr. Davis — you heard the testimony of Bert Davis as to a conversation between you and him respecting land values ? A. Yes, sir.
‘ ‘ Q. And he told you something about some land values? A. Yes, he told me about his land; what he was offered for it.
“Q. Is that a fact he told you about that? A. Yes, sir. Ve was driving along — I was with Elmore after that and we was driving along and talking about this land, S. E. Carter and me, lands around there and the value of it, and I says to S. E. Carter, ‘Mr. Davis tells me he was offered two hundred dollars an acre for his land.’ He says: ‘He was never offered anything like that.’ It was high over on the side of the hill and you could see the drill cuttings from the buggy and he says, ‘ They never struck a thing, never got anything at all,’ but I found out afterwards they did strike big stuff there.
“Q. You found out since they had stuff? A. Yes, sir. That is on the Davis farm.”
On cross-examination he stated that the conversation with S. E. Carter occurred in 1905', then the following occurred:
“Q. You say in 1905 you could see the drill running on what land? A. I said the drill cuttings.
“Q. The drill cuttings on what land in 1905-? A. Bert Davis’s land.
“Q. When did you go down to Texas with Bert Davis ? A. Some time in the wintertime.
“Q. What year? A. Must have been 1905.
“ Q. Then how did you get out with your brother early in 1905 telling what Davis said when Davis said this all took place in December. How did you get out here in 1905 with your brother before that? A. I might have made a small mistake.
“Q. Pretty big one, wasn’t it? A. I thought it was in the fall, but still it might have been later. ’ ’

In the litigation with Mrs. Miller, Judge Robertson represented the defendant, and Thomas Dolan represented Mrs. Miller. The defendant, before the settlement of that litigation in May, 1906, through Judge Robertson made an offer to Mr. John Dolan, the son of Thomas Dolan, to sell the Carter land at a hundred dollars an acre with tin addition of about $7000 which was to go to other persons as commissions, about $2000 of which was to go to Judge Robertson. That proposition was pending a week or two and was not accepted.

On February 19, just ten days after plaintiff put his deed in the hank with the option, Byrd gave -an option on the land to John Carey at $304,000. Carey never at any time called for the land under that option. The evidence showed that Byrd collected royalties as follows: -for 1906, $4588.92; 1907, $14,331,27; 1908, $4975.99; 1909, $6107.26; total $30,003.44.

There is no evidence in the ease tending to show that any statement of fact, as distinguished from matter of intention or opinion, made by the defendant, was false. After executing the option to the defendant in January, 1906, and prior to closing the deal in April, the plaintiff spent several days examining and pricing-lands around Webb City with a view to buying with the money he was to get for his interest in the Carter land; and he finally bought a farm in another neighborhood.

The evidence for the plaintiff tended to show that the land in the beginning of the year 1906 was worth from $150 to $400 an acre. The evidence for the defendant was that the land was worth about $100 an acre.

The result of the litigation in the Miller and Leslie cases shows conclusively that the defendant was guilty of fraud in those deals, and that too with his sisters who were far away and relying upon him to treat them fairly. With those facts before us we have been forewarned to be on the lookout for fraud in this case. We have not been able to find it. We concede without expressly so holding that the relations of the plaintiff and defendant were such as to constitute defendant the agent and fiduciary of plaintiff so as to throw the burden upon defendant of showing that the plaintiff was fairly dealt with.

It is charged that the defendant stated to plaintiff that the rains and floods had destroyed the agricultural value of the land. The facts are that plaintiff lived on the land all his life until 1896, and testified that the floods partly destroyed his wheat. The defendant had not lived on the land since about 1876. Plaintiff had more knowledge of the merits of the land as a farm than defendant had.

The petition alleges fraud in inducing plaintiff to put the deed in bank in escrow in November, 1904. Yet it is a conceded fact that the deed remained there a year, and was then returned to plaintiff at his request. Defendant could not have been very anxious to close that deal. All he had to do was to pay the amount named in the deed and have the deed delivered to Byrd.

The letter of December 21, 1905', from defendant to plaintiff, so far as we have been able to discover, was a fair statement of the facts as they existed at that time. Defendant wanted plaintiff to make a lease of the land, the plaintiff to get the same terms as the defendant after the expiration of defendant’s lease. In that letter the defendant stated that he had succeeded1’ in getting another mill started on the land, and said “if they can find a good mine it would change the situation somewhat in our favor.”

Plaintiff testified that at the time he closed the deal all of the mills that had formerly worked on the Carter land had left. i

We have been much impressed with the fact that plaintiff admitted that Davis, on their trip to Texas during Christmas, 1905, told him about the sale of land adjoining the Carter land, some at $300 and some at $1000 an acre, and that he (Davis) had been offered $200 an acre for his. Yet plaintiff attempted to avoid the force of that evidence by saying that when he was on the land with defendant in 1905 he told defendant about what Davis had said, and that defendant said, “He was never offered anything like that. They never struck a thing, never got anything at all.” On cross-examination, he was constrained to admit that he was not on the land with defendant in 1905 after his trip to Texas, and that he had made a mistake. One who assails another on a charge of fraud should be sure that his own evidence is free from suspicion of an attempt to impose on the court. The defendant, before closing the deal with plaintiff, told the plaintiff that their sister, Mrs. Miller, had sued him for fraud in his purchase from her. During that Miller litigation defendant offered to let Mr. Dolan have the land for a sum that should net $100 an acre. That proposition was pending a week or more and was not accepted. Defendant paid his brother $600 for a half interest in the-Waco land in 1903. That would be $1200 for the tract. That amount plus the $8000 cash was $9200 paid plaintiff for his interest in the land. That lacks only $1560 of the original consideration named in the deed, the amount for which defendant was willing to let Mr. Dolan have the land.

The evidence shows that the plaintiff was fully aware of the productiveness of the mines on land adjoining the Carter land. He well knew the failure of the mining. operations on the Carter land up to the time of the deal in controversy. After the deed was put back in the bank, it remained there about two months before it was delivered. If the defendant was anxious to seize the land' at less than its value, why should he delay so long1?

Plaintiff introduced evidence tending to show that defendant got him intoxicated in order to defraud him. He had two months in which to 'get sober before he caused his deed to be delivered. It is true that after defendants purchased the lands, some productive mines were opened on the land, but they are clearly shown to be discoveries made after the conveyance by plaintiff. Before the plaintiff closed the deal with the deféndants hé investigated the question of land values with a view to buying land near Webb City. He purchased elsewhere. We have chosen to treat the defendants as one and the same person so far as the merits of this case are concerned. But we hold that the evidence clearly shows that defendant’s dealing with his brother, the plaintiff, was free from fraud of any kind, and, consequently, the decree of the court below is affirmed.

Williams, G., concurs.

PER CURIAM. —

The foregoing opinion of Roy, 0., is adopted as the opinion of the court.

All the judges concur.


author:
ROY, C. —
      PER CURIAM. —

text:
    ALBERT T. TERRY et al., Appellants, v. LEONARD D. GROVES et al.
    Division Two,
    May 26, 1914.
    1. CONVEYANCE: Assuming Incumbrance: Principal Debtor. One who upon a conveyance to him of real estate encumbered by a deed of trust assumes and agrees, as part of the consideration, to pay the debt, becomes the principal debtor as to the encumbrance.
    2. MORTGAGE: Foreclosure: Purchase by Trustee. Under a will a daughter of the testator received an undivided one-third of encumbered .land for life, remainder in fee to her children (the plaintiffs), and took another third because as to it her father died intestate. The remaining third passed under the will to the plaintiffs in fee, subject to the control of their parents during their minorities. Upon foreclosure of the trust deed the daughter bought in the property. Held, that she took subject to the equity of the children to acquire their respective interests on paying their proportion of the encumbrance.
    3. WILLS: Record: Notice: Chain of Title. Where plaintiffs took title to encutñbered realty under their grandfather’s will, which was filed for record, they are chargeable with notice- of the contents of the will and of all facts in the record of their chain of title, including the fact that the deed of trust contained a power of sale; that the land was subject to sale under such power, and that the purchaser might sell, improve or subdivide the land.
    4. LACHES: Suit to Quiet Title. Encumbered realty having been willed to testator’s daughter with remainder in a part to her children, the plaintiffs, she bought the property at the foreclosure sale under the deed of trust, and having thus acquired the legal title, she sold the land to S, whose grantee in turn conveyed to a realty company. Thereafter the land was platted, lots were sold and improvements placed thereon. All these things were of record, yet plaintiffs did not sue on the ground that their mother’s purchase inured to their benefit under the will, until twenty years after the mother’s purchase and eight years after the youngest of the plaintiffs reached his majority. Meanwhile the land had become city property and had grown greatly in value, both on account of a general rise in value and because-of improvements placed thereon by defendants and those under whom they claimed. Held, that the plaintiffs are barred by laches from maintaining a suit for any interest in the land.
    Appeal from St. Louis County Circuit Court. — Hon.
    Affirmed.

      Randolph Laughlin for appellants.
    (1) By the trustee’s sale and deed to Mrs. Terry, she acquired no title as against her children, either to the undivided third in which she had1 a life estate and her children the remainder in fee, or to the undivided third vested in her children, hut subject to her fiduciary control. The purchase by her inured to their benefit, and after the termination of her life estate in the one-third, and of her fiduciary control over the other third, they could recover the land in ejectment against her grantee. As to this undivided two-thirds, Mrs. Terry held a trust relation towards her children, and could not purchase it for her exclusive benefit, hut was hound to hold for them whatever she purchased, and to account to them for the same as such trustee. Allen v. DeGroodt, 98 Mo. 161. (2) At the time of the conveyance from Mrs. Terry and her husband to Schureman, in 1887, the public records showed that she had title by virtue of two instruments, viz.: The trustee’s deed executed under the power of sale in the deed of trust from herself and hus7 band; and the will of Albert Todd. Schureman was charged with notice of both of these sources of title. He could not disregard the one because the other looked better to him and seemed perfect. He must examine both, and consider every question that either would suggest, and was, therefore, charged with notice that after the execution of the deed of trust by Mr. and Mrs. Terry they had conveyed to Todd, and he had assumed the deed of trust, and by virtue thereof had become primarily liable; further, that Mr. Terry had become the legal holder of his own note, and as such had procured the trustee’s sale to be made; further, that Mrs. Terry had on the face of the record become the purchaser of all the title that she and' her husband had had at the time of the execution of the deed of trust, and of all that they had conveyed to Todd, and of all that Todd had devised by his will, including the interests of her children, and her own interests. (3) As to the one-third of the real estate which was either devised by implication to Mrs. Todd, or which was at least reserved during her lifetime as subject to her dower, and which is referred to in Todd’s will as “the life estate of my wife,” with remainder over to appellants, appellants have never had any right of entry, and will have none until Mrs. Todd’s death, or until her rights in the land are debarred by appropriate legal action. Adverse possession being an affirmative defense, the burden rested on respondents to show every element necessary to make out such defense, and their failure to show that Mrs. Todd’s rights in the land in suit ever' had been barred is fatal to their defense, because, on the face of Todd’s -will, appellants had no right of entry until the death of Todd’s widow. It follows that it was error for the court to decree that appellants were barred as to this third. (4) As to the remaining two-thirds: Plaintiffs were the owners in fee of one undivided third at the time of the conveyance .to Schureman, in 1887. They became the owners of the other undivided third at the death of Mrs. Terry in April, 1888. The Statute of Limitations could then begin to run, and after ten years could bar their rights, except for their disability or minority. The youngest of them ■ became of age more than three years before the commencement of this suit, so that the questions, with respect to this two-thirds of the real estate in controversy, are these: (a) Are the defendants in a position to avail themselves of the defense of the statute? (b) Does the evidence sustain the defense?

      J. C. Kishaddon, A. EL. KisTcaddon and- R. EL. Stevens for respondents.
    (1) The sale under the Terry-Coles deed of trust to Elizabeth T. Terry conveyed to her a complete title in fee to the real estate described therein. And her subsequent conveyance to Schureman conveyed to him her title discharged of any personal trust in her of which she may have committed a breach.' Orrick v. Durham, 79 Mo. 179; Wayman v. Jones, 58 Mo. App. 318; Nelson v. Brown, 140 Mo. 590; Pratt v. Conway, 148 Mo. 296. (2) Schureman purchased and"paid for the property without notice either actual or constructive of any breach of trust on the part of his grantor, Elizabeth T. Terry, and there is no evidence in the record in this case that any breach of trust was committed by her. The only notice he could have had was notice that his grantor was a life tenant in one-third of the property. (3) Plaintiffs and appellants in law •and equity are barred by the statute of limitations. R. S. 1909, secs. 1881, 1883; Ogle v. Hignet, 161 Mo. 51; G-ray v. Gates, 67 Mo. 601; "Wheelock v. Oversheimer, 110 Mo. 113; Hinters v. Hinters, 114 Mo. 30; Reed v. Painter, 145 Mo. 355 ; D.e Hatre v. Edmonds, 200 Mo. 273. A temporary absence or casual break in the actual possession, provided there is left on the land the visible marks of the claim of ownership, is insufficient to constitute a break in the continuity of possession. A voluntary absence of that kind animo revertendi does not break the continuity of possession. Crespón v. Hannover, 50 Mo. 549 ; Turner v. Hall, 60 Mo. 275; Bartlett v. O’Donahue, 73 Mo. 563; Pimm v. St. Louis, 122 Mo. 655. (4) Under the circumstances disclosed by the evidence in this case plaintiffs and appellants, even though the Statute of Limitations may not have run against all of them, are barred in equity by their laches in failing to assert their rights, if any they have. Ilámmond v. Hopkins, 143 U. S. 224; Prevost v. Gratz, 6 "Wheat. (U. S.) 481; Lansdale v. Smith, 106 U. S. 392; Harwood v. Railroad, 17 Wall. (U. S.) 81; Badger v. Badger, 2 Wall. (U. S.) 95; Ready v. Smith, 170 Mo. 174; Davidson v. Mayhew, 169 Mo. 267; Baker v. Cunningham, 162 Mo. 144; Wall v. Beedy,. 158 Mo. 213; Loomis v. Railroad, 165 Mb. 490; Becht v. Becht, 168 Mo. 532; Lindell v. Lindell, 142 Mo. 78; Goodson v. Goodson, 140 Mo. 216; Bobb v. Wolff, 148 Mo. 348; Hatcher v. Hatcher, 139 Mo. 626; Landsum v. Bank, 63 Mo. 56; Smith v. Washington, 11 Mo. App. 519, 88 Mo. 475; Burgess v. Railroad, 99 Mo. 508; Kroenung v. Goehri, 112 Mo. 648; More-man v. Talbot, 55 Mo. 392; Kline v. Yogel, 90 Mo. 247.
   ROY, C. —

On’May 6, 1902, the Overland Park Real Estate Company filed in the office of the recorder of deeds of St. Louis county a plat of East Overland Park, a suburb of St. Louis. It contained 54.92 acres, and was by tbe plat subdivided into lots, blocks, streets and alleys. Many of the lots were thereafter sold to separate purchasers, many of which were built upon by the several purchasers. On April 15, 1905, a large number of tlmse lot owners began a suit against the plaintiffs herein, entitled Groves v. Terry, to try the title to said land. There was a decree for the defendants in that case. The trial court granted a new trial, and, on appeal, the action of the court in granting such new trial was affirmed. [Groves v. Terry, 219 Mo. 595.] Pending that appeal this suit was begun on April 21, 1906. By order of the trial court made before the trial of this cause the two suits were consolidated. The plaintiffs in the first suit are not all the same as the defendants in this, but no point is made on that fact by either party, nor is any objection made on the ground that several separate causes of action against several parties have been united in one suit against those parties jointly. In this case there was a decree for defendants, and plaintiffs have appealed.

The first count is ejectment for all the land in East Overland Park. The second count is, so far as necessary to be stated, as follows:

“For a second and separate statement of their cause of action against defendants, plaintiffs allege as follows:
“That on July 20, 1876, John H. Terry and his wife, Elizabeth Todd Terry, were the owners of the ground described in the first count of this petition. That on'said date said John H. Terry and his said wife, by their deed of trust of that date, conveyed said ground to Albert Todd in trust for Edward and Mary Coles, to secure the payment of a principal note of that date, drawn for $6000, and by its terms made payable three years after date, together with six interest notes, payable semi-annually. That said deed of trust was duly recorded on the--day of July, 1876, in the office of the recorder of deeds within and for the city of St. Lonis in book 548, at page 536.
“That afterwards, and on November 22, 1883, said John H. Terry and his said wife conveyed all of said land to said Albert Todd by their warranty deed of that date for a consideration of $5400. Said warranty deed was on the--day of November, 1883, duly recorded in the office of the recorder of deeds of the county of St. Louis, in book 22, page 229. That said conveyance was by its terms made subject to the said prior deed of trust, which it recited, and which the said Albert Todd, by the terms of said warranty deed to him, and by his acceptance thereof, assumed and agreed to pay as part of the consideration of said deed.
“That by said warranty deed said Albert Todd acquired the title to said property.
“That on Apri 30, 1885, said Albert Todd died, leaving his last will and testament, which was dated May 6, 1876, and was duly probated, and was recorded on May 7, 1885, in book 27, page 524, in the office of the recorder of deeds and wills of the county of St. Louis. That said will is the will by virtue of which these plaintiffs claim to have derived their title to said property, and is the same will of which a duly certified copy is herewith filed as plaintiff’s exhibit 1.
“That said Albert Todd died solvent, leaving much real estate, and a personal estate worth in excess of $80,000 above and beyond all liabilities, and upon his said will being probated the said John H. Terry duly qualified as sole executor of his said estate, and as such continued to administer said estate until his final discharge as such executor in or about July, 1887. That said Albert Todd was survived by his widow, Mary C. J. Todd, and by his daughter, Elizabeth Todd Terry, and these four plaintiffs, who were and are the only children of said Elizabeth Todd Terry, and of her husband, the said John H. Terry, and who were and are the grandchildren of said Albert Todd and his wife, Mary O. J. Todd. The said Elizabeth Todd Terry was the only child of the said Albert Todd.
“That the third clause of the said will of Albert Todd devised to the said Elizabeth Todd Terry (therein called Elizabeth Helen, wife of John H. Terry, Esq.) the use and enjoyment of one undivided third of all the real estate of the testator including the real estate in suit, for her exclusive use and behoof during her natural life, with remainder over in fee to her children, these plaintiffs. That said will devised to these plaintiffs (therein designated as the children of the testator’s daughter living at the time of his death) one undivided third of said realty in fee. That said will further devised the remaining third of said real estate, upon the termination of the life estate of the widow of the testator therein, to these plaintiffs (therein designated as the children of the testator’s daughter). That the third paragraph of said will further provided that until the death of the testator’s said daughter, the realty vested in these plaintiffs as her children should not be divided among them by partition, by deed, or by the courts, without the consent of the testator’s said daughter, Elizabeth Todd Terry, expressed as therein provided.
‘ That the fifth paragraph of said will authorized and empowered the said Elizabeth Todd Terry and her husband, the said John H. Terry, and the survivor of them, to manage the realty acquired by their children, these plaintiffs, under said will; to collect the rents and from them to pay all taxes and assessments, general and special, from time to time chargeable, and all expenses for needful repairs, etc.
“That the sixth paragraph of said will provided that in order to preserve a proper dependence of said children (these plaintiffs), and their descendants upon their parents and the survivor of them, the testator’s devises to said children (these plaintiffs) were thereby made subject to the foregoing powers, and to the express condition that the testator’s said daughter, Elizabeth Todd Terry, and her husband, the said John H. Terry, and the survivor of them, should not be made liable for or compelled, beyond the wish and pleasure of them, and of the survivor of them, to account for the rents and profits of said realty, or any part thereof, to anyone of their said children (these plaintiffs), until he or she became of age or married, and then only for his or her proper share thereof, accruing and received therefrom after his or her majority or marriage; Provided, however, that they and the survivor of them should properly maintain, support, and educate them each, till his or her majority or marriage, and manage and preserve their realty. And plaintiffs show the court that the said will created a trust relation between these plaintiffs and their said parents with respect to the subject-matter of said realty, and that the said John H. Terry and the said Elizabeth Todd Terry were trustees, and each of them was trustee, of said trust, and that these plaintiffs were the beneficiaries thereof to the. extent and in the manner provided by the said will.
“The plaintiff Albert T. Terry was born on December 19, 1869, and became of lawful age on December 19, 1890.
‘1 The plaintiff Robert J. Terry was born January 24, 1870, and became of lawful age on January 24, 1891.
“The plaintiff John H. Terry, Jr., was born on November 27, 1873, and became of lawful age on November 27, 1894.
“The plaintiff Howard L. Terry was born on January 4,1882, and became of lawful age on January 4,1903.
“All of the plaintiffs were living at the time of the death of the said Albert Todd,
“On February 15, 1886, Herman A. Haeussler, at the request of said John H. Terry and Elizabeth Todd Terry, petitioned the circuit court of St. Louis county, reciting that Albert Todd was dead, that Eobert C. Allen, the sheriff of St. Louis county, disclaimed the right and refused to act as trustee in place of said Albert Todd, deceased, under the deed of trust first above mentioned from J ohn H. Terry and wife to said Albert Todd, in trust for said Edward and Mary Coles, (dated July 20,1876), wherefore the petitioners prayed the court to appoint William F. Broadhead as trustee to execute the trust declared in said deed of trust, and on said petition said William F. Broadhead was appointed.
“On March 16, 1886, said Broadhead foreclosed said deed of trust, at public sale, and sold the property therein described (and involved in this suit) to said Elizabeth Todd Terry for a consideration of three thousand dollars. The trustee’s deed from said Broadhead as trustee to said Elizabeth Todd Terry, recites that the sale was advertised for twenty days in the Missouri Eepublican, in the city of St. Louis, beginning February 24, 1886> and recites that the consideration paid by the said Elizabeth Todd Terry was three thousand dollars. The purpose of said foreclosure sale was to clear the title to said property in said Elizabeth Todd Terry. Said trustee’s deed was afterwards recorded in booh 30, at page 329, in the recorder’s office of the county of St. Louis.
“At the time of said sale, and at. all times prior thereto, and thereafter until the year 1901, the said land was vacant county property and uncultivated.
“After the said foreclosure sale the said John H. Terry, as sole executor of the estate of said Albert Todd, paid said Edward and Mary Coles with moneys out of said Todd’s personal estate, in his hands as such executor, the said principal note of six thousand dollars so secured by said deed of trust, together with all unpaid interest notes, and with all interest due on all, and also the expenses of foreclosing the said deed of trust. This was the only money actually paid on account of said indebtedness, and was at the time treated and agreed by all parties concerned as including the payment of three thousand dollars paid by said Elizabeth Todd Terry at said foreclosure sale.
“Thereafter, and on March 30, 1887, said Elizabeth Todd Terry and said John H. Terry, her husband, by their warranty deed of that date, sold and conveyed said property (being the property involved in this suit) to Joseph P. Schureman, who thereafter, and in 1893, conveyed the title so acquired by him in due form to James McCausland, who thereafter, and in 1894, conveyed said same title to the Overland Real Estate Company, which company thereafter, in 1901, and in connection with the Mississippi Valley Trust Company of the city of St. Louis, platted said property as East Overland Park, and sold and conveyed lots therein to the defendants, and to each of them, or to the predecessors in title of each, by warranty deed made to each. By virtue of said warranty deeds from said Overland Real Estate Company to the defendants, defendants have acquired and now hold all the title to said property which was conveyed by deed from Elizabeth Todd Terry and John H. Terry, her husband, to Joseph P. Schureman, dated March 30, 1887, as above stated. Attached to this petition, and made a part hereof, is a blue print plat of the property in suit, platted as East Overland Park as aforesaid. That these plaintiffs deny that the platting of said property as East Overland Park was of any validity, but the defendants, nevertheless, claim under the subdivision evidenced by said plat, and as such are in the common possession of all of the streets and avenues shown on said plat, and withhold the same from the plaintiffs herein. That in addition to the possession aforesaid the defendants are severally, and not jointly, in possession of divers and sundry parcels of the land in suit, the parcels so possessed by each being designated as lots upon said plat, the position of each defendant being indicated on said plat by his name appearing upon the parcel or lot so in his possession.
‘ ‘ The said Elizabeth Todd Terry died' on the 14th of April, 1888, and thereafter administration was had upon her estate, and final settlement therein filed and approved, and the administrator duly discharged, and the administration of said estate fully and finally closed on or about July 15, 1890, all before the institution of this suit.
“That final settlement was filed in the estate of said Albert Todd on July 12, 1887, which at the time showed and still shows the payment by said John H. Terry as executor of said estate, and with the moneys of said estate, of the said .principal note of six thousand dollars, and interest notes secured by said deed of trust, dated July 20', 1876, and assumed by said Todd by said warranty deed to him from said John H. Terry and wife, dated December 22, 1883. Said final settlement was duly approyed by the probate court, and said John H. Terry, the sole executor thereof, was duly discharged by said court, and the administration of said estate was fully and finally closed, all before the bringing of this suit. That said John II. Terry and said Mary C. J. Todd are still living, and that each of them disclaims all and all manner of interest in the property in suit.
“Plaintiffs further show the court that by virtue of the facts aforesaid, and the provisions of the will of said Albert Todd, the said Elizabeth Todd Terry stood in a fiduciary relation to these plaintiffs with respect to the property in suit at the- time of the foreclosure sale thereof, and the proceedings had in connection therewith, during and throughout .the months of February and March, 1886. That because of such relation the. outstanding claim of title purchased by her to the subject-matter of her trust at the foreclosure sale held on or about March 16', 1886, inured to the benefit of these plaintiffs, and whatever title, if any, vested in the said Elizabeth Todd Terry under the trustee’s deed executed to her pursuant to such sale was held by her as trustee of a constructive trust for the use and benefits of plaintiffs; that the record of said Todd’s will on May 27, 1885, imparted notice to the said Schureman and to all persons claiming under him of the legal purport and effect of said will, including the fact that thereby the said Elizabeth Todd Terry stood in a fiduciary relation to plaintiffs and was disqualified from acquiring an adverse title against them; that such constructive notice wholly destroyed all claim or pretense on the part of the said Schureman and his successors in title of being innocent purchasers in law, and such notice subordinated said Schureman title to the title of these plaintiffs.
“Plaintiffs further state that if the said trustee’s deed from Broadhead to Elizabeth Todd Terry was of any validity in law, which plaintiff’s deny, then that the legal title to.-the property in suit is now vested "in the defendants, as to each parcel of land occupied by each defendant as aforesaid, and as indicated .on the plat hereto annexed, but that each defendant holds such legal title as trustee of a constructive trust of which these plaintiffs are the joint beneficiaries; but that if such trustee’s deed was inoperative to pass the legal title, then that the legal title as well as the equitable title is well and truly vested” in the plaintiffs. That both plaintiffs and defendants desire to avoid a multiplicity of suits by trying and determining' the title to the property in suit as a whole, in one and the same proceeding. That that portion of the real estate described in the first count of this petition, and involved in this suit, which is not in the actual possession of the defendants, is partly vacant, and is partly in the possession of other persons whose names are to these plaintiffs unknown. That these plaintiffs do • not now know what portions of the real estate in suit, other than those portions in the present actual possession of the defendants as aforesaid, are occupied, and what portions are vacant. That those portions of the 'real estate described in the first count of this petition which are not in the actual- possession of the defendants, ás aforesaid, yet constitute a part of the subject-matter of this petition, and that there are, or plaintiffs verily believe there are, persons interested in such subject-matter of the' petition whose names these plaintiffs cannot insert herein because they are unknown to plaintiffs. That the interest of such persons is thisThat each one. of them claims to be the owner of some parcel or lot of ground designated as a lot on the annexed plat, and not marked as a lot in the possession of some one of the defendants; that such interest has been derived by each of such unknown parties, so far as plaintiffs’ knowledge thereof extends, by purchases, through mesne conveyances, from the said Schureman and those claiming under him in like manner as the claim of title of the several defendants has been derived from said same source.
“Plaintiffs further state that the defendants have committed great waste and trespass upon the said real estate so in their possession, in this; that they have constructed divers and sundry buildings upon it, all of which are of such character as to depreciate and cheapen the value of the land. That said buildings are of such character that they may be readily removed therefrom. That plaintiffs desire said buildings to be removed from their said land and desire that defendants be afforded a reasonable time in which to accomplish such removal; nevertheless, if the court should think that equity require the plaintiffs to accept said buildings, and pay their value notwithstanding the fact that said buildings are of no value to the plaintiffs and are not desired by the plaintiffs, yet plaintiffs offer to pay and will pay to the defendants, in such proportions as may be adjudged by the court, such sum or sums as the court may hold to be necessary to the doing of whatever equity the court may require to be done as conditions precedent to the granting of equitable relief in the event the court shall hold equitable relief to be necessary therein. And plaintiffs offer to pay any and all taxes that have been paid by the defendants, and by their predecessors in title, on any of the land in suit, but not upon the improvements thereon, unless required by the court so to do.
■ “Wherefore these plaintiffs pray the court to try and determine the estate, title, and interest of the parties respectively in the said real estate described in the first count of this petition, and to define and adjudge by its judgment and decree, the title, estate, and interest severally in and to the said property, and to adjudge that the trustee’s deed from William F. Broadhead, trustee, to Elizabeth Todd Terry, of date March 16,1886, was and is of no validity or effect, and that the - plaintiffs are the owners of the fee simple title to the said real estate, and that the defendants are without right, title, or interest therein or thereto, or to any part thereof; or, failing that, then that the court adjudge and decree that the said trustee’s deed passed only the legal title to such real estate to Elizabeth Todd Terry, and that it passed the same in trust for these plaintiffs as to one- third outright, and as to one-third upon the death of said Elizabeth Todd Terry, and as to the remaining third upon termination of the life estate of Mary C. J. Todd therein, and that these plaintiffs succeeded to the equitable title to that one-third wherein the said Elizabeth Todd Terry had. a life estate upon the death of the said Elizabeth Todd Terry on April 14, 1888,. and that these plaintiffs succeeded to the title to that one-third wherein the said Mary O. J. Todd held the life estate upon the disclaimer of said Mary C. J. Todd of and to all interest therein; or, if the eonrt shall find that the interest of the said Mary C. J. Todd has not terminated as to said one-third, then that these plaintiffs hold a vested remainder in said one-third to vest in possession npon the death of the said Mary C. J. Todd; and that the defendants are not innocent purchasers without notice of the equitable title of these plaintiffs, but that they are, and that each of them is, a purchaser with constructive notice of such title, and that as' such purchaser each of the defendants holds the legal title to the part so purchased by him as trustee of a constructive trust for the use and benefit of these plaintiffs; and that such legal title, if any, so vested in the defendants, be divested out of the defendants and well and truly vested in these plaintiffs jointly or in such manner as the court may deem right and just; and that the defendants may be required within a reasonable' time, to be fixed by the court, to remove from said property all and all manner of buildings and building material placed' by them upon it, or, failing that, that money damages be adjudged in favor of plaintiffs and against the defendants for depreciation in the value of said land, and damage thereto, caused by the construction of such buildings thereon; and that an accounting may be had and taken between the parties hereto; (1) of all taxes paid by defendants, and by their predecessors in title, upon the land value of the land in suit, apart from its improvements, to the end that these, plaintiffs may pay the ascertained aggregate thereof to the parties entitled thereto; (2) of the value of the use and occupation of said premises while the sáme have been in the actual use and occupation of the defendants, to the end that these plaintiffs may recover the actual value of the use and occupation of their interest therein; and (3) of the depreciation in the value of the land caused by the waste which the defendants have committed upon it; and that a money judgment be rendered in favor of the parties in whose favor the balance of such accounting may be found. ’ ’

The deed1 of trust from the Terrys to the Coles recited that it was made to secure to each of the Coles a principal note of $3000' with sis interest notes to each.

The Overland Park Real Estate Company was on its motion made a defendant. The defendants filed a joint answer, of which that portion applicable to the second count is as follows:

For answer to the second cause of action in said amended petition, defendants admit that on the 20th day of July, 1876, John H. Terry and his wife, Elizabeth T. Terry, conveyed the real estate described in the first count of said amended petition to Albert Todd, in trust for Edward and Mary Coles, to secure the payment of principal notes in the sum of $6000, together with several interest notes payable semiannually ; that said principal notes were made payable three years after date; that said deed of trust was recorded in the office of the recorder of deeds within and for the city of St. Louis., in book 548', at page 536.
“Admit that on the 2nd day of November, 1883, the said John H. Terry and Elizabeth T. Terry, his wife, conveyed all of said real estate to the said Albert Todd by their warranty deed of that date for a consideration of $5400; that said deed was recorded in the office of the recorder of deeds of St. Louis county, in book 22, at page 229; that said conveyance'was- by its terms made subject to the said prior deed, of trust, which it recited, and which said Albert Todd, by the terms of said warranty deed to him, and by his acceptance thereof assumed and agreed to pay as part of the consideration of said deed.
“Admit that on April 30, 1885, said Albert Todd died, leaving his last will and testament, which was dnly probated and is recorded in book 27, at page 524, in the office of the recorder of deeds of St. Lonis county, Missouri.
“Admit that the said John H. Tqrry duly qualified as sole executor of said last will, and as such continued to administer the estate of said Albert Todd, deceased, until his final discharge; that said1 Albert Todd was survived by his widow, Mary C. J. Todd, and by his daughter, the said Elizabeth T. Terry, and by the plaintiffs, who are the only children of said Ehzabeth T. Terry and her husband, the said John H. Terry, and who are the grandchildren of the said Albert Todd; that the said Elizabeth T. Terry was the only child of said Albert Todd.
“Admit that on February 15, 1886, a petition was filed in the circuit court reciting that Albert Todd was dead, and that the then sheriff of St. Louis county refused to act as trustee in place of Albert Todd, deceased, the trustee under said deed of trust of John H. Terry and wife to said Albert Todd in trust for Edward and Mary Coles, dated July 20, 1876, and that in accordance with the prayer of said petition one William F. Broadhead was appointed by judgment of the said court as such trustee.
“Admit that on March 16, 1886, said Broadhead foreclosed said deed of trust at public sale, and sold the property therein described to said Elizabeth T. Terry for the sum of $3000; that said trustee’s deed is recorded in the records of deeds of St. Louis county, Missouri, in book 30, at page 329.
“Admit that on March 30, 1887, said Elizabeth T. Todd and her husband by their warranty deed of that date sold and conveyed1 said property to one Joseph P. Schureman, who thereafter in 1893 conveyed the title so acquired by him to James MeCausland, who thereafter conveyed the same property to the defendant The Overland Real Estate Company, who thereafter platted said property as East Overland Park and sold and conveyed lots therein to defendants, and to each of them, or to the predecessors in title of each, by warranty deed.
“Admit that said Elizabeth T. Terry died on April 14, 1888, and that administration was had upon her estate and final settlement thereof filed and aj> proved, and the administrator duly discharged, and the administration of said estate finally closed on or about July 15, 1890.
“And defendants deny each and every allegation contained in said second count of said amended petition, except such as are hereinbefore specifically admitted.
“And for further answer to said second count of said amended petition defendants state that on the 20th day of July, 1876, the said John H. Terry was the owner in fee and in possession by himself and his tenants of the real estate described in the first count of the amended petition; that on said last date the said John H. Terry and his wife made and executed a deed of trust whereby they conveyed said real estate in trust to said Albert Todd, to secure the payment of certain promissory notes; that said notes so intended to be secured by said deed of trust were made by the said John H. Terry and consisted of two principal notes of $3000 each, payable three years after date, with interest from maturity at ten per cent per annum, and twelve interest notes of $120 each, two of each of which were payable six, twelve, eighteen, twenty-four, thirty and thirty-six months after date; that said principal and interest notes were made payable to Edward and Mary Coles; that these defendants nor any one of them has or have in their possession or under their control the said deed of trust; that by mistake either in drafting said deed of trust or in making the record thereof, it appears by the record1 thereof that one principal note of $3000 and six principal notes of $120 each were secured thereby, but said record of said deed of trust recites that there were fourteen notes in all secured thereby; that said deed of trust further provides that said John H. Terry, his grantees and lessees, should be and remain the tenants of the said Edward and Mary Coles, rendering and paying rent for all said real estate from the date of the execution of said deed of trust until the debt secured thereby was fully paid, or until said deed of trust was foreclosed by a sale thereunder in accordance with its terms.
“That on the 2nd day of November, 1883, the said John H. Terry and his said wife, by their warranty deed of that date, for a consideration in part of $5400, conveyed said real estate to the said Albert Todd, who took said real estate subject to the terms and conditions of said deed of trust; that said warranty deed recites that it is made subject to a certain deed of trust in favor of Mary and Edward Coles for the sum of $6000, recorded in book 548, at page 536, which said debt the said Todd undertook to pay as a part of the consideration of said conveyance.
“That on April 30, 1885, said Albert Todd died, leaving a last will and testament, which was thereafter probated in the probate court of the city of St. Louis, and letters testamentary thereon were by said court issued to said John H. Terry, who qualified and continued to act as executor of said will until the final settlement of said estate.
“That on February 15, 1886, a petition was filed in the circuit court of St. Louis county, Missouri, wherein is recited said deed of trust of John H. Terry and wife to said Edward and Mary Coles; that petitioner was the holder of a note of $3000 secured thereby; that said note was unpaid; that said Albert Todd, trustee, was dead; that by reason of the separation of the city and county of St.' Louis by the scheme and charter it was doubtful which sheriff, that of the city or of the county, should, as successor, execute said trust; that the sheriff of St. Louis county had refused to act; that the real estate affected by said deed of trust was situated in St. Louis county; and praying for the appointment of Vm. F. Broadhead as trustee; that said last-named court thereupon by its order and judgment appointed said Broadhead as trustee.
“That afterwards, on the 16th day of March, 1886, the said trustee -executed the trust aforesaid1 by selling at public sale at the east front door of the. courthouse in the city of St. Louis, said real estate, at which sale the said Elizabeth T. Terry became the purchaser at and for the sum of $3000,, the receipt, of which sum by said trustee is acknowledged.in the deed of the said Broadhead to the said Elizabeth T. Terry, made in pursuance of said sale.
“That afterwards on March 30, 1887, the said Elizabeth T. Terry and her husband, the said John H, Terry, by their warranty deed of that date for a consideration of $7000, the receipt of which is acknowledged in said deed, conveyed said real estate to one Joseph R. Schureman, who thereupon took possession of said real estate under his said deed.
“That at the time said Schureman purchased said real estate and paid said sum of $7000 therefor, the said Schureman had no notice, either actual or constructive, of any right, title, interest or equity of plaintiffs herein touching said real estate, or of any breach of trust on the part of said John H. Terry and Elizabeth T. Terry, or either of them, touching plaintiff’s interest therein; that at the time the defendant herein purchased and paid for and placed lasting and valuable improvements on the several and distinct parcels of said real estate, which each of them owns and is in possession of, separate and distinct from the other defendants, each defendant had no notice, either actual or constructive, of any right, title, interest or equity of plaintiffs herein touching said real estate, or of any breach of trust on the part of said John H. Terry and Elizabeth T. Terry, or either of them, touching plaintiffs’ interests therein.
“That the said Elizabeth T. Terry died April 14, 1888, leaving as her only heirs the plaintiffs herein; that said Elizabeth T. Terry dmd seized of a large and valuable estate; that plaintiffs, through inheritance from their said mother, Elizabeth T. Terry, have received said sum of $7000 paid by said Schureman to her for said real estate, and are thereby estopped from having or claiming any right, title or equity in said real estate.
“That each of the defendants oh the parcel of said real estate owned and in possession of each of them, respectively, have made permanent and valuable improvements, thereby more than doubling the value thereof, and' in consideration of all the allegations of this answer, and the lapse of time since said alleged breach of trust was committed by said John H. and Elizabeth T. Terry, the plaintiffs have been guilty of laches in not sooner prosecuting their claims, if any they have, herein, and they are thereby estopped from having or claiming any right, title or interest in said real estate.
“That the-defendant the Overland Park Real Estate Company, under whom the other defendants hold title each to several distinct parcels of the real estate described in the first count of the amended petition as hereinafter more fully alleged, and its and the other defendants’ grantors and prodecessors in title of said real estate, have had and.held open, notorious, actual, exclusive and adverse possession of said real estate, claiming title thereto, for a period of ten years and more before the commencement of this action.”
Mr. O. P. Baldwin testified for defendants:
“I have lived just across the street from the land in suit since 1867, and am acquainted with said land. I have known John H. Terry, Sr., since about that time! When Aiken owned the land it was in the possession of a man named Rodeman. After Aiken sold to Terry, it was in the possession of Mr. Terry’s tenant, Joseph P. Connelly, who was farming it. There was then a four-room house on the land, a stable, and some small outhouses. It was all in cultivation except about one acre on the northeast corner.
“Joseph P. Schureman succeeded Connelly in possession. I made the sale for Mr. Terry to Mr. Schureman. Schureman paid $7000, which was a reasonable value at that time.
“After Mr. Schureman bought the property he farmed it, rented it out. He had a tenant named Whitely, and he farmed with the tenant. He put a large barn on the property, and fenced the whole property with a good wire fence and cedar posts. He planted about forty acres in orchard. He continued in possession until I resold it again to a man by the name of McCausland.
“I know that none of these Terry children knew anything about the title to this property, or their interest in it, until I myself informed them. And I informéd them right before this suit was brought.”

The witness further stated that the average cost of houses built on the lots is from $250.0 to $3500, and that unimproved lots sold from $500 to $900 for a half acre.

For plaintiffs John H. Terry, Sr., testified: “Albert Todd’s estate was in course of administration about three years. I was the sole executor of that estate. Broadhead and Haeussler were my attorneys. Haeussler did most of the work. I remember the circumstances of the sale under the deed of trust of this property which is involved in this suit. Mr. Haeussler managed the sale. I was not present, but he attended the sale and reported it to me. Mrs. Terry, my wife, was not present at that time. She was an invalid for a long time. I asked Mr. Haeussler to have the foreclosure sale made. At the time of that foreclosure sale I know that there was nothing paid, either to myself or to Mrs. Terry. I know that no money was ever paid by Mr. Schureman to Mrs. Terry.”

Cross-Examination: ‘ ‘ Mr. Schureman did not pay any money to me. I know that he did not pay any money to Mrs. Terry. I know that he paid that $7000, or whatever was paid, to Haeussler, and it was applied immediately upon the deed of trust. It did not come into my hands at all. It was applied on the $6000 that Todd owed, and the costs.”

Redirect Examination: “That matter was left to Mr. Haeussler, and he did what he did in my absence. I was not present when he received any money. I do not know of my own knowledge what Haeussler did with this particular money that he got. ’ ’

John H. Terry, Jr., one of the plaintiffs, testified: “The plaintiffs were born on the following dates: Albert T. Terry on December 19', 1869; Robert "J. Terry, on December 24, 1871; John H. Terry, Jr., on November 24,1873; Howard L. Terry, on January 24,1877.”

The petition filed by Haeussler in the circuit court for the appointment of Mr. Broadhead as trustee stated that Haeussler was the holder of the $3000' note payable to Coles secured by that deed of trust. The trustee’s deed to Mrs. Terry recites a consideration of $3000.

I. The petition alleges that Albert Todd assumed and agreed to pay the $6000 deed of trust to the Coles. By such agreement he became the principal debtor as to that $6000 encumbrance on the land. [Orrick v. Durham, 79 Mo. l. c. 180; Fitzgerald v. Barber, 70 Mo. 685.]

It is needless for us to inquire whether the iaw would require that the debt to Coles should be paid out of the. personalty of Todd’s estate and the land be thus relieved of that encumbrance. The petition alleges that the estate had $80,000' of personalty after the payment of debts and the expenses of administration. The answer denies that allegation, not specifically, it is true, but under the general denial. There is no evidence in the case showing whether there was any personalty in the estate.

We thus have a plain case of a devise of encumbered realty, by which Mrs. Terry took a third of the land for life with remainder to her children, these plaintiffs. She took another third in the land because her father appears to have died1 intestate as to that third. The remaining third under the will went to these plaintiffs in fee, subject to the control of their parents during their respective minorities. Under such circumstances, when Mrs. Terry became the purchaser at the foreclosure sale, she took the title ^us ac(3Wred f°r the benefit of herself and of the plaintiffs according to their respective interests. Plaintiffs say that she paid nothing at that sale for the land, that such sale was merely colorable and without consideration and did not for that reason pass even the legal title. They say in their petition that the Coles debt was paid out of the personal assets of the Todd estate. That allegation is denied by the answer and is refuted by the following facts: The trustee’s deed to Mrs. Terry shows the payment by her of the $3000 bid at the sale. Mr. Haeussler, who was the attorney of the executor of Todd’s estate, in his petition for the appointment of a trustee to make the sale, states that he was the holder of the $3000 note secured by that deed of trust.

John H. Terry, Sr., in his testimony for plaintiffs states that the $7000 paid by Schureman to the Terrys for the land was paid to Haeussler and applied by him to the payment of the deed of trust. True Mr. Terry, on redirect examination, denied1 knowledge as to what was done with the particular money. The Terrys did not get any of the money paid by Schureman for the land, and the Coles debt was paid. According to the evidence Schureman paid all the land was worth, and, according to the evidence of John IT. Terry it took all of the $7000 paid by Schureman for the land to pay the Coles debt. He says, “It was applied on the $6000 that Todd owed and the costs.” 'The petition speaks of unpaid interest on that debt. So that there was a mere bare equity left in the children. They had the right, in a reasonable time, to contribute their share of the amount paid by Mrs. Terry for the land and have the title vested in them pro rata according to the respective interests of the parties. Whether they were bound to pay their proportion of the $3000 consideration named in the trustee’s deed to Mrs. Terry, or thmr proportion of the $7000 paid by Schureman, we will not, under the circumstances of this case, undertake to decide. They were at least bound to contribute their proportion of the $3000.

Appellants say that defendants are affected with notice of the infirmities in Mrs. Terry’s title, because Notice, she held under the will and under the trustee’s deed, and that persons claiming under her must take notice of the instruments in both sources of her title. That is conceded. On the other hand the plaintiffs are required to take notice of both those sources of title. >

Baldwin, a witness for defendants, testified: “I know that none of these Terry children knew anything about the title to this property, or their interest in it, until I myself informed them. And I informed them right before this suit was brought.”

Then they did not actually know-until just before this litigation was begun that they ever had any interest in this land. Let it be conceded that they did not, np to that time, have actual knowledge that any interest in the land had ever been devised to them. When they, even at that late day, begun to assert their rights under Todd’s will, they did so cum onere. The law conclusively presumes that from the filing of Todd’s will plaintiffs had knowledge of its contents, and also that they had knowledge of the deed of trust to the Coles and of the assumption of that debt by Todd, because those facts were all in Todd’s chain of .title. The deed of trust to the Coles contained a power of sale. Plaintiffs, in contemplation of law, knew that' a sale was liable to be made under that power, and that the purchaser at such sale was liable to sell the land, or improve it or subdivide it.

In Farrar v. Payne, 73 Ill. 82, it was said. ‘ ‘ Sharp had hut an equity of redemption. At the time Caldwell, the attaching creditor, levied his writ of attachment, the sale under the trust deed had already been made and the equity of redemption extinguished. There was no duty resting upon either Cranston or Gibbons to give notice of the purchase and sale to Sharp or those claiming the equity of redemption under him, either by the recording of the trustee’s deed from Gibbons or otherwise. The trust deed had been recorded previous to the attachment, and that was enough. The published notice of the sale was all the required notice of any proceeding under the trust deed. The recording of the trust deed gave notice of its existence to subsequent claimants of the equity of redemption, and pointed out the source of information of what might he done in pursuance of the deed, and they were bound to take notice of the proceedings thereunder. The title of Cranston related back to the execution of the deed of trust. The subsequent proceedings under the deed of trust were connected with and in aid of the title conveyed by that deed. ’ ’

In Marshall v. Hill, 246 Mo. l. c. 30, Brown, C., said: “The Lead Company had constructive notice of all matters of public record' in its own chain of title, including such collateral matters as these records pointed out. In this case the chain of title consists solely of the patent of 1898 and their own option. It is true the patent points out that it is made ‘in lieu of one dated August 30, 1872, in which the description of the land was erroneous, the record of which has been cancelled.’ This notation does not tend to direct attention to the fact that any chain adverse to the patentee existed. Nor do we think that a purchaser from the patentee or those claiming under him, who has had no connection with the proceedings by which the patent was obtained, is, by his purchase alone •chargable with notice of such proceedings.”

Thus plaintiffs were required to take notice of the foreclosure of the Coles deed of trust and of their mother’s purchase and of her sale to gchuremaxx and on down the title to the filing of the plat of East Overland Park. They were affected with constructie notice that numerous persons were liable to purchase lots in that plat and build improvemexxts thereon. Yet no suit was brought until four years after such plat was filed and until after many residences had been built on the lots. The owxxer of land may be far away, and he may be in fact ignorant of the title which he holds to real estate, but there are two things which the law presumes that he knows: First, the facts in his chain of title, and such additional facts as he is bound to learn by following down a superior chain of title; second, he must take notice of buildings and other improvements made on the land that are so opexx and notorious that in passing by or over the land the plaintiffs could not reasonably be deceived. [Lumber Co. v. McCabe, 220 Mo, l. c. 182.]

We are not donbtfnl when we say that the plaintiffs have not proceeded within a reasonable time to have their rights declared in this property. They are barred by laches. They waited for more than twenty years after the sale to their mother, and eight years after the youngest of them became of age, before bringing suit.

The defendants have the legal title. Plaintiffs cannot recover without the aid of equity, and laches bars the way to equitable relief. They have waited until the farm has become urban property, greatly enchanced in value in two 'ways, by the general rise in value of property, and by the improvements which have been put upon it by the defendants and those under whom they claim.

In Shelton v. Horrell, 232 Mo. l. c. 376, Judge Graves said, “Under evidence which shows that the land had materially advanced in value, and to some extent through the efforts of the defendants, it will hardly do to say that there has not been a changed situation which was occasioned by the laches of the plaintiff.”

II. Appellants say that the judgment should be reversed and remanded as to defendants Dimitry, Mitchell and Morris for the reason that these defendants on the witness stand declared that they had never employed any attorney to represent them in this case. All the defendants, including those three, were joined in an answer signed by counsel. That answer was never withdrawn or stricken out by the court. It stood as an answer until disposed of by the court in some way known to the law. The case was tried on the theory that the allegations of the petition were denied, and we must consider it in that light. The decree of the trial court is affirmed.

Williams, C., concurs.

PER CURIAM. —

The foregoing opinion of Roy, C., is adopted as the opinion of the court.

All the judges concur.