author: ROY, C.

text:
    THE STATE v. THOMAS WARD, Appellant.
    Division Two,
    July 14, 1914.
    1. LARCENY: Instructions: “Feloniously.” Where in a prosecution for grand larceny the court instructed the jury to find the accused guilty if they believed from the evidence that he wrongfully took and carried away a pocketbook and money from the possession of M., with the intent to fraudulently convert it to his own use and permanently deprive the owner thereof without his consent, the same being the property of M., the failure to require- a finding that accused’s intent in* taking and carrying away the things stolen was felonious did not render the instruction erroneous.
    2. -: -: “Without Claim of Right.” Wherei the State’s evidence tended to show that the accused picked the pocket of the prosecuting witness like an expert, that he was described to the police by his victim and was taken within an hour and a half with part of the money on him, and where he made no defense at the trial, a failure to require a finding that the taking was without claim of right would not be error, since the facts show there was no such claim.
    3. -: Evidence: Identity of Stolen Bank Notes. Evidence as to the identity of national bank notes found on the accused with those stolen from the prosecuting witness MU sufficient to take the question to the jury.
    4. -: Instructions: All the Law of the Case: Motion for New Trial: Appeal: Circumstantial Evidence. Although the trial court’s attention was at no time specifically called to a failure to instruct on circumstantial evidence, and the motion for new trial merely alleged that the court did not instruct on all the law of the case, still the Supreme Court is bound to see that no injustice is done by such omission, and it is MU, in a trial for grand larceny,, where direct evidence identifies the accused as the person who pressed against the prosecuting witness when his pocketbook. was taken, and identifies money found on the accused as part of that then stolen, that an instruction on circumstantial evidence was not required.
    Appeal from St. Louis City Circuit Court. — Hem, William M. Kinsey, Judge.

      Affirmed.

      Barclay, Fauntleroy, Cidlen <& Orthwein for appellant.
    (1) The first instruction of the court in this case was insufficient in that it did not require the jury to find the defendant feloniously took, stole, and carried away money and property nor did it require them, to find that the defendant took the property with the felonious intent to convert the same to his own use. State v. Richmond, 228 Mo. 362; State v. Weatherman, 202 Mo. 9; State v. Moore, 101 Mo. 326; State v. Campbell, 108 Mo. 614; State v. Lackland, 136’ Mo. 31; State v. Rutherford, 152 Mo.-131; State v. Littrell,. 170 Mo. 15; Barnes v. State, 59 N. W. 125. (2) Where the evidence on a trial is wholly circumstantial, the jury should be instructed that, they should -not convict the accused, unless the State has proved his guilt from the evidence beyond a reasonable doubt, by facts and circumstances, all of which are consistent with each other and with his guilt, and absolutely inconsistent with any reasonable theory of innocence. State v. Moxley, 102 Mo. 375; State v. Lackland, 136 Mo. 33? State v. Woolard, 11 Mo. 256; State v. Hill, 65 Mo. 87; State v. Bobbit, 215 Mo. 43'; State v. Clark, 145 Iowa, 731; U. S. v. Chandler, 65 Fed. 308; U. S. v. Searcey, 26 Fed. 435-, The courts have very frequently set aside a verdict of conviction of larceny where the proofs were circumstantial and not of such character as to prove, beyond reasonable doubt, that the accused and no other person committed the offense. Kaiser v. State, 53 N. W. (Neb.) 610; State v. Nesbit, 43 Pac. (Ida.) 66; McDaniel v. State, 90 S. W. 504; Roberts v. State, 40' S. E-. 697; Hodnett v. State, 45 S. E. 60. (3) The evidence was insufficient to identify the money found in the possession of defendant as the money of the prosecutor, and the court erred in instructing the jury on the theory of recent possession of stolen property. Burrill on Circumstantial Evidence, pp. 453,171, 656; Wills on Circumstantial Evidence,'pp. 63, 129; U. S. v. Osgood, 27 Fed. Cas. 15,971a; IT. S. v. Candler, 65 Fed. 308; Bush v. Water Co., 43 Pac. 68; State'v. Payne, 34 Pac. 320; Doss v. State, 13 S. W. 788; Knoll v. State, 55 Wis. 249; Crane v. State, 111 Ala. 45; State v. Nesbit, 43 Pac. 66.

      John T. Barker, Attorney-General, and Stephen K. Oiven for the State.
    (1) The first point raised by defendant is that instruction number one is defective. The purpose of instructions in any case, as stated in State v. Richmond, 228 Mo. 365-, is “To guide a jury of plain men to a correct understanding of the law of the case. ’ ’ If this instruction meets that requirement it is sufficient, as it is not necessary that it should be framed with the technical precision of an indictment. In the present case, the court was telling" the jury what was necessary for the defendant to have done in order to have committed the crime of grand larceny. Larceny has been defined since 1866 in Missouri “as the wrongful or fraudulent taking and carrying away by any one of the personal property of another from any place, with a felonious intent to convert the same to his (the taker’s) own use, and make it his own property, without the consent of the owner.” State v. Gray, 37 Mo. 464. The instruction complained-of required the jury to find “that defendant did wrongfully take and carry away (the property mentioned) from the possession of Woodson M. Miles, with the intent to fraudulently convert the same to his own use and permanently deprive the owner of the use thereof, without his consent, and that the same was the property of Woodson M. Miles, of the value of thirty dollars or more.” What necessary element is lacking in this instruction? It is true the word feloniously is not used, but the jury was told that the taking must have been wrongful, with the intent to fraudulently convert the property to defendant’s own use and permanently deprive the owner of the use thereof without his consent. Our courts hold that when the word “feloniously” is used in an instruction, it is-not necessary to define it. State v. Scott, 109 Mo. 226; State v. Cantlin, 118 Mo. 100'; State v. Barton, 142 Mo. 450; State v. "Weber, 156 Mo. 249. So we take it that if it is not necessary to define the word feloniously, when used, it is not necessary to use it. To wrongfully take and carry away the property of another from his possession with the intent to fraudulently convert the same to his own use and permanently deprive the owner of the use thereof, without his consent, expresses the mimo furcmdi, or as the civilians express it lucri causa, and that being true, the instruction is sufficient. A very similar instruction was given by the court in the case of State v. Martin, 28 Mo. 530'. That case has been affirmed in a long- line of decisions. In the case of the State v. Lackland, 136 Mo. 26, Judge Gantt, commenting on that instruction, 1. c. 31, says: “In that instruction was the guilty knowledge that the cattle were not his own; the criminal intent to deprive the owner of his property, and the unlawful and fraudulent conversion to his own use without the consent of the owner.” (2) Defendant complains because the court did not give an instruction on circumstantial evidence. It is only in cases where the State seeks to convict on circumstantial evidence alone that it is proper to give such an instruction. That is the rule laid down in one of the cases cited by appellant. State v. Bobbitt, 215 Mo. 43. None of the other cases cited by appellant are in point, for the reason that a conviction was sought on purely circumstantial evidence. For instance, in the case of the State v. Lackland, 136 Mo. 32, Judge Gantt says: “Now, in this case Mr. Ford never saw the hogs which defendant sold to Rogers and Percy. No witness identified these hogs, or either of them, as Ford’s hogs. Rogers and Percy did not know Ford’s hogs. The case was one of circumstantial evidence, and the State’s case depended upon the jury’s finding- and believing that the facts and circumstances in evidence pointed so strongly to .defendant’s guilt as to exclude any other reasonable hypothesis.” In the case at bar there was proof that at least two of the bills stolen from prosecuting witness Miles, a twenty and a ten-dollar bill, were found in the exclusive possession of defendant, and that fact was sufficient reason for not giving1 an instruction on circumstantial evidence, and for giving one on the possession of recently stolen property, as will more fully appear hereafter. (3) It is contended that the evidence was not sufficient to identify the money found in possession of defendant as the money of Miles, and therefore the instruction on recent possession of stolen property was erroneous. The following cases will conclusively show that the court did not err in giving this instruction : 25 Cyc. 124; State v. Hoppe, 391 Iowa, 468; Baker v. State, 80 Wis. 416; State v. Griffin, 71 Iowa, 372; People v. Linn, 23 Cal. 150; People v. Wong Chong Suey, 110 Cal. 121; Bucker v. State, 26 S. W. 65; Comm, v. Montgomery, 11 Mass. 534.
   ROY, C.

Defendant was convicted of grand larceny. Woodson M. Miles, a lawyer of Union City, Tenn., in company with W. A. Beck-ham of that place, arrived in St. Louis about 7:30 a. m., August 8, 1912. Miles had in his left hip pocket a leather pocketbook containing three $2]} bills and two $10 bills, all new and crisp, issued by the Third National Bank of Union City, Tenn. They went into a saloon, got a drink, and Miles took out his pocketbook to pay for the drinks; but Beckham paid, and Miles replaced his pocketbook. They proceeded to take a car at Eighteenth and Market streets. Just before doing so, Miles felt his pocketbook in Ms pocket. There was a great crowd pushing and surging to take the car. Beckham went first, followed by two or three others ahead of Miles, who noticed the defendant deferentially yield precedence to him, and noticed that defendant crowded or was pressed close against ■him behind, and that there was considerable pressure on his pocketbook. Immediately on entering the car Miles felt his pocket and reported to Beckham that his money had been taken. They went down town, got breakfast, and reported the matter to the police. About an hour afterward, Miles saw defendant in the custody of the police. A $20’ bill and a $10 bill, both new and crisp, issued by said bank, were taken from the person of the defendant by the police at the time of his arrest. On the trial those bills were shown to Miles and he was asked to testify whether they were the bills that he lost on the car. Objection was made on the ground that they had not been properly identified as the same money which was lost and that the question called for a mere conclusion of the .witness. The objection was overruled, and he stated that they were the same. He said that he recognized them from the signatures of the officers of the issuing bank, those on the $20 bill being in red ink, and those on the $10 bill being in black ink, and from the fact that they were crisp and new, which, as the witness stated, was a rarity in his country. The witness stated that, after reporting his loss to Beckham, he asked the conductor if he saw that young man take his pocketbook. He testified that he recognized the defendant at the time of his arrest and at the trial as the same one who pressed behind him into the car. He testified: “I didn’t, of course, see him actually go into my pocket and take the money out, but I saw that he was right behind me, and I know that nobody else was right behind me, and at the same time I felt that pressure right there over my pocketbook, and it was a very perceptible noticeable pressure.”

Beckham testified that he saw defendant behind Miles as he was entering the car, and that Miles reported his loss and asked the conductor if he saw the young man take his pocketbook. The witnesses further stated that they described the money and the man to the police and gave their address at the Pierce building, and that in about an hour the officer came for them. This witness recognized the defendant as the man at the car. The police officer testified that the bills shown at the trial were the ones which he took from the person of the defendant at the time of his arrest. The bills were read in evidence over the objection of defendant that they were not properly identified as the same lulls which were stolen.

Defendant asked an instruction in the nature of a demurrer to the evidence, which was refused. He introduced no evidence.

The court gave the following as its principal instruction: “First: If, upon consideration of all the testimony in the case in the light of the court’s instructions, you find and believe from the evidence that at the city of St. Louis and State of Missouri, on or about the 8th day of August, 1912, or at any time within three years next before the filing of the information herein, the defendant, Tom Ward, did wrongfully take and carry away one black leather pocketbook and eighty dollars lawful money of the United States or any part thereof from the possession of Woodson M. Miles with the intent to fraudulently convert the same to his own use and permanently deprive the owner thereof without his consent, and that the same was the property of said Woodson M. Miles and of the value of thirty dollars or more, you will find the defendant Tom Ward guilty of grand larceny and assess his punishment at imprisonment in the penitentiary not less than two years nor more than five years, and unless you so believe and find from tbe -evidence, you will acquit said defendant of grand larceny. ’ ’ Also an instruction on tbe presumption arising from tbe recent possession of stolen property.

Defendant objected to the instructions given on tbe ground tbat tbey did not properly declare the law, or all of tbe law in tbe ease. When asked if be bad further instructions to offer, counsel for defendant said, “No, your Honor, we are going to stand on our demurrer. ’ ’

Tbe motion for new trial made tbe point that- tbe trial court did not instruct on all tbe law in tbe case, but did not state any particular point on which there bad been a failure to instruct.

I. The cases of State v. Richmond, 228 Mo. 362, and State v. Weatherman, 202 Mo. l. c. 9‘, seem when read superficially to read tbat tbe word “felonious” or “feloniously” shall be used in an instruction to describe tbe intent of tbe wrongdoer in taking and carrying away tbe thing stolen. But tbat is not tbe meaning of those, opinions. Tbe whole history of tbe subject in this court shows tbat such is not tbe case. Judge Gantt wrote tbe opinion in tbe Richmond case. He concurred in tbe opinion in State v. Campbell, 108- Mo. 611, in which it was said, ‘ ‘ Tbey should have been told what would have constituted a felonious taking1 under tbe law; tbe taking must have been without right, and with tbe intention of converting tbe cow to a use other than tbat of tbe owner, without bis consent.” Tbat learned Judge wrote tbe opinion in State v. Lackland, 136 Mo. l. c. 31, in which be approves an instruction given in State v. Martin, 28 Mo. 530, which did not contain tbe word “felonious” or “feloniously,” but did require tbat tbe taking and carrying away should be knowingly, without tbe consent of tbe owner, without any claim of yight, and with intent to deprive tbe owner of the property and convert it to defendant’s own nse, and defraud the owner.

Judge Macfablane said in State v. Scott, 109 Mo. l. c. 232, that “felonious” originally has no place in an instruction, and that when used it is most frequently hut a repetition of what is expressed in other and simpler words. We conclude that the mere fact that the word “felonious” is not used does not invalidate the instruction. The question now arises, Does the instruction properly state the felonious intent? In State v. Spray, 174 Mo. 569, which whs a robbery case, the instruction, so far as the larceny is concerned, was the same in all its elements as here. It was held sufficient.

It will be observed, from a reading of all the cases, that the element expressed by the words “without any claim of right” is one of the most im- , . portant ones ordinarily m such an instruction. If such an element is in the instructions in this and the Spray cases, it must be found in the words “wrongfully” and “fraudulently.” Without deciding whether it is so contained in those words, we hold that, even conceding that it is not, its absence does not in this case constitute reversible error.

The State’s evidence was to the effect that defendant picked the pocket of the prosecuting witness in an expert manner that he was described to the police by his victim and was taken on the hot trail with a part of the money on him. The balance of the money had been disposed of. No defense on the trial was made. There may be many other cases where the omission to require that the taking was “without any claim of right” would be fatal, but this is not one of them. The State’s evidence and the defendant’s conduct all show there was no claim of right either at the taking or at the trial. There may be a technical error in the instruction, but we are absolutely certain that such error, if any, did not “prejudice the substantial rights of the defendant on the merits, ’ ’ and, therefore is not reversible.

II. Appellant claims that the evidence as to the identity of the money is not sufficient and cites Burrill on Circumstantial Evidence, p. 453, where it is said:

“Where all that can- be proved concerning property found in the possession of a supposed thief, is that it is of the same hind as that which has been lost, this will not, in general, be deemed sufficient evidence of its having been feloniously obtained, and some proof of identity will be required. But where the fact is very recent, and the property consists of articles the identity of which is, from their nature, not capable of strict proof, the conclusion may be drawn that the property, being of the same kind, is, in fact, the same, unless the prisoner can prove the contrary. Thus, if a man be found coming out of another’s barn, and, upon his being searched, corn [or grain] be found upon him, of the same kind as that in the barn, the fact is pregnant evidence of guilt; and cases have frequently occurred where persons employed in carrying sugar or other articles from ships and wharves, have been convicted of larceny upon evidence that they were detected with property of the same kind-upon them, recently upon coming from such places; although the identity of the property,, as belonging to such and such persons, could not otherwise be proved.”

The money found on the defendant was not only the same denominations as that lost, but it had other evidences of identity. It was new and crisp; it was in national bank bills; it was money issued by the Third National Bank of Union City, Tenn., a place comparatively remote, so that fresh, crisp bills, or any bills of its national banks, were not supposed to be common in the city of St. Lonis. As those peculiarities of description increase in number the degree of certainty is multiplied. Then the defendant was at the spot where the prosecuting witness was deprived of his money, and the money was found on him within an hour and a half afterward. The evidence of identity was ample to take it to the jury.

III. It is said by appellant that there should have been an instruction on the subject of circumstantial evidence. In the motion for a new trial, defendant made the point that the court did not instruct on all the law in the case, but at no time was the trial court’s attention called specifically to the failure to instruct on circumstantial evidence.

It was held in State v. Conway, 241 Mo. 271, that where the particular point on which the trial court has failed to instruct is not mentioned in the motion for a new trial it comes too late in this court. We are, however, in any event, bound to see that no injustice is done by such omission. We can see no way in which such an omission prejudiced the defendant. In addition to what is above said, the case did not depend alone on circumstantial evidence. The direct evidence in the case identifies the defendant as the party who pressed against Miles at the time the pocketbook was taken, and identifies the stolen money found on the defendant as that taken from Miles. Such being the case, the trial court was not required to instruct on circumstantial evidence.

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

Williams, C;, concurs.

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

All concur, Faris, J., in result.


source: Caselaw Access Project

author: WILLIAMS, C.

license: Public Domain

text:
    MERAMEC PORTLAND CEMENT AND MATERIAL COMPANY, Appellant, v. ROBERT KREIS.
    Division Two,
    July 14, 1914.
    SPECIFIC PERFORMANCE: Parol Evidence: Statute of Frauds. Specific- performance is refused where there is no description, in letters and memoranda, to satisfy the Statute of Frauds, other than “land south of the Missouri Pacific Rail- ■ road tracks,” and “forty-some-odd acres of bottom land you fcave adjoining us [plaintiff] at Sherman, Missouri.” Parol evidence, when admitted to disclose the situation of the parties when the writings were made shows only that defendant did own land adjoining a tract of plaintiff’s, but not necessarily situated at Sherman, and, even though the evidence had shown such location, it appears that defendant’s tract contained 72.95 acres, and it would he impossible to ascertain from the memorandum what portion should he taken to compose the forty-odd acres mentioned.
    Appeal from St. Louis County Circuit Court. — Son. John W. McElhinney, Judge.
    Affirmed.

      Collins, Barker db Britton and C. K. Rowland for appellant.
    (1) The memorandum in this case is sufficient. Sec. 2783, R. S. 1909; 20 Cyc.- 253; Springer v. Kleinsorge, 83 Mo. 157. (2) Memorandum of a contract of sale and conveyance of land, although signed only by the party to be charged when sufficiently clear and certain in its terms, affords a competent basis for a. suit for specific performance. Mastin v. Grimes, 88 Mo. 478; Moore v. Thompson, 93 Mo. App. 348; Cable v. Jones, 179 Mo. 606; Real Estate Co. v. Spelbrink, 211 Mo. 671. • (3) While parol evidence is not admissible to piece out the memorandum, it is clearly admissible for the purpose of identifying the property described in the memorandum if reference is made to some “external standard,” by which the property can be located. Darnell v. Lafferty, 113 Mo. App. 301; Sailor v. Gilfillan, 73 Mo. App. 152; Springer v. Kleinsorge, 83 Mo. 157; Smith v. Wilson, 160 Mo. 666; Bollinger County v. McDowell, 99 Mo. 637; Black v. Crowther, 74 Mo. App. 483; Tetherow v. Anderson, 83 Mo. 97; Cravens v. Pettit, 16 Mo. 210. (4) Where the memorandum is sufficient to meet the requirements of the Statute of Frauds, the acceptance may be oral. Waterman Spec. Perf., sec. 137; Gradle v. Warner, 140 111. 123; Brown Stats. Frauds, sec. 345a; Farwell v. Lowther, 18 111. 252; Black v. Crowther, 74 Mo. App. 480. (5) It is not necessary that the memorandum upon which a party may be charged shall be a single document. Such memorandum may be made up of a number of different papers, such as letters, etc., where there is a sufficient reference made to identify and connect them, and one or more of them is signed by the party to be charged. Peycke Bros. v. Ahrens, 96 Mo. App. 456; Cunningham v. Williams, 43 Mo. App. 629; Moore v. Mountcastle, 61 Mo. 424; Gurley-Burnham Co. v. Capen, 23 Mo. App. 301; Heideman v. Wolf stein, 12 Mo. App. 366; Swallow v. Strong, 85 N. W. (Minn.) 942; Charlton v. Real Estate Co., 69 L. R. A. (N. J. Eq.-) 394. (6) Even where the memorandum attempts to make time of the essence of the contract, by fixing a definite date for the acceptance-of the offer, if the parties continue to deal together after the expiration of the time fixed, this amounts to a waiver of the element of time. 1 Story Eq. Jur., sec. 776; Mastín v. Grimes, 88 Mo. 485; Melton v. Smith, 65 Mo. 322; Mix v. Baldac, 78 111. 217.

      George M. Block and Frank B. Coleman for respondent.
    The memorándum in this case is not a sufficient compliance with the Statute of Frauds to constitute a binding contract between appellant and respondent- or entitle appellant to any relief. (1) Because there was no sufficient description of the premises sought to be purchased. Sec. 2783, R. S. 190*9; Fox v. Courtney, 111 Mo. 147; King v. Wood, 7 Mo. 389 ; Whaley v. Hinchman, 22 Mo. App. 483; Schroeder v. Taaffe, 11 Mo. App. 267; Weil v. Willard, 55 Mo. App. 376; Johnson v. Fecht, 94 Mo. App. 605; Johnson v. Fecht, 185 Mo. 335. (2) Because there is no sufficient description of the purchaser. Rucker v. Harrington, 52 Mo. App. 48*1; Toms v. Bayse, 65 Mo. App. 30'; Car-rick v. Mincke, 60 Mo. App. 140. (3) Because there is no sufficient certainty as to the terms of the alleged contract. Kelly v. Thuey, 143 Mo. 435; Ringer v. Holtzclaw, 112 Mo. 522; Wendover v. Baker, 121 Mo. 290; Ice Co. v. Heinze, 102 Mo. 245; Mastin v. Hally, 61 Mo. 196; Taylor v. Williams, 45 Mo. 80!; Boyd v. Paul, 125 Mo. 14. (4) Because the memorandum being scant in measure under the Statute of Frauds- it cannot he pieced out by verbal additions. Boyd V. Paul, 125 Mo. 14; Ringer v. Holtzclaw, 112 Mo. 519; Kelly v. Thuey, 143 Mo. 422; Reigert v. Coal & Coke Co., 217 Mo. 160.
   WILLIAMS, C.

Plaintiff corporation, by action for specific performance, seeks to compel defendant to convey to it a tract of land situated in St. Louis county, Missouri, described as follows:

“Part of the southwest quarter of section 15 and of the northwest quarter of section 22 in township 44 north of range 4 east, containing 39 acres more or less, and being particularly bounded and described as follows, to-wit: Commencing at the point where the south boundary line of the present right of way of the Missouri Pacific Railroad intersects the east boundary line of the southwest quarter of section 15 aforesaid, and running thence in a westwardly direction with the south boundary line of said right of way to the intersection thereof with the west boundary line of ‘Castle Woods’ subdivision, as per plat thereof recorded in a plat book No. 9, at page 24, in the recorder’s office of the city of St. Louis; thence • running south with the west boundary line of said Castle Woods to the middle of the main channel of the Meramec River; thence down the middle of the main channel of said stream, with the meanders thereof, to the east boundary line of the southwest quarter of said section 15, and thence north with the east boundary of said southwest quarter of said section 15 to the place of beginning; bounded on the north by the south line of the present right of way of the Missouri Pacific Railroad, on the south by the middle of tbe channel of the Meramec River; on the east by the east line of the southwest quarter of section 15 aforesaid, and on the west by the west line of the subdivision known as ‘Castle Woods’ as per plat thereof recorded as aforesaid.”

On May 31, 1908, defendant delivered to one Lewis (who was then in the employ of the plaintiff), the following unsigned paper:

“No. 1, $6000 (six thousand) with land south of Miss. Pac. R. R. tracks, fishing rights for Clubhouses members and Oil & Gas rights reserved, also piping-water over land.

“•No. 2, $5000 (five thousand) for bar and track purpose, without any land.

“No. 3, $3000 (three thousand) for privilege of letting Comp. Plant on my place & for running tracks over my land for 15 (fifteen) years after 15 years Comp, has to pay me $250 (two hundred & fifty) doll. a year annually in advance. I reserve the Right to ship Sand, Gravel & Wood over these & Comp, tracks on Frisco R. Road, if bridge is build, if not on Miss. Pac. R. Road. I to pay 25 cents to Comp for each loaded car.

“No. 4, 50 Cent's (fifty) Royalty for each Car of Sand & Gravel, $3000 (three thousand) Cash, which is to be repaid to Comp, from Royalties, I to get 25c./ for each Car and 25c./ to be kept back untill the $3000 are repaid, Then Comp, has to pay me 50 cents, A'way to be devised to keep exact Count of each car load, taken out.

“ These offers to be good only for six (6) days untill 6th of June, 1908.-

£<St. Louis, May 31, 1908.”

Said Lewis delivered this paper to Mr. Boyd, the • vice-president and general manager of plaintiff company. On June 2, said Boyd wrote to defendant the following letter:

“Meramec Portland Cement & Material Co.

^ St. Louis, Mo., June 2, 1908.

Mr. Robert W. Kreis,

Jennings, Missouri.

Dear Sir:

Please call at the office at your earliest possible convenience to talk over the matter of purchasing the forty-some-odd acres of bottom land you have ad-’ joining us at Sherman, Missouri.

Please advise me, as soon as possible, when we may expect you, and oblige,

Tours very truly,

T. P. Boyd, ’

Yice-Pres. & Gen ’1 Mgr. ’ ’

On June 3, defendant wrote to said Boyd in answer to the above letter as follows:

“Jennings, Jnne 3, 1908.

Mr. Prank P. Boyd,

St. Louis, Mo.

Dear Sir:

Received your letter dat. June 2. I am unable to see you, as our Works are going to close down for 10 days for repair, commencing next Monday and we have to work overtime to finish by Saturday eve. I have given Mr. Lewis the 4 diff. propositions that 1 would accept last Sunday and told him, that they were good untill Sat. June 6th after which time I would turn the business over to Lawyer Mr. Block & Comp, in the Carrolton Bldg, Mr. Block wanted to take it right away, but I did not like to do it untill I heard from your Comp. It does not cost me anything, as they will handle it on a Commission of what they get over $5000. I will under the circumstances extend the time untill Monday eve, June 8th, but. in the meantime let me know, which proposition you will accept. As there is no use to argue any points or price, as I have set them down and intend to stick to them. If you come to any conclusion let me known and I will come Monday with my Lawyer and fix it up. If any one of your Comp, want to see me, you can find me at M. A. Seed Dry Plate Works, Woodland, Mo., on the Wabash R. R. between 12 and 1 o’clock. I think it is unnecessary to mention that it will be to your Comp, benefit to have it settled on or before June 8-, 1908.

I remain

Resp. yours, Robt. Kreis.”

On June 2, defendant wrote to said Lewis the following postal card.

“St. Louis, June 2,1908.

Mr. W. J. Lewis,

St. Louis, Mo.

Dear Sir:

I hardly think it necessary to see you as you have the propositions to submit to the Comp. I am positive the Comp, knows all about it. If they are smart they will loose no time to write me about the offers which I numbered, as Saturday is the last day & after that I have nothing to do with it any more.

truly yours,

Robt. Kreis. ’ ’

On June 10, defendant wrote to said Lewis the following postal card:

“St. Louis, June 10, 1908.

Mr. W. J. Lewis,

St. Louis, Mo.

Dear Sir:

Please do not wait for me as I have disposed of my property South of R. R. Tracks. I remain,

Resp. yours,

Robt. Kueis.”

Said postal card was addressed to “Mr. W. J. Lewis Meramec Portland Cement & Mat. Co., 507 Nat. Bank of Com. Bldg., St. Louis, Mo.”

The above letters and papers constitute all of the written memoranda concerning the transaction. At the instigation of Mr. Boyd, a Mr. Terpening, who was at that time one of the directors in the plaintiff company, arranged for a meeting with defendant at the Southern Hotel in St. Louis on Saturday evening, June 6th. The defendant and his brother came to the hotel and there met Mr. Terpening. After the parties had been in consultation some considerable time, Mr. Boyd joined the meeting. At this meeting Mr. Terpening made several offers to the defendant for his 'property, but it appears that all of these offers were less than six thousand dollars. Both Mr. Boyd and Mr. Terpening urged defendant’s brother to use his influence to cause defendant to accept the propositions there made by Mr. Terpening. The parties, were unable to cause defendant to accept the propositions there made by Mr. Terpening and Mr. Terpening .told defendant to “take Ms land and go.”- Mr. Boyd testified that liad Mr. Terpening been able to purchase the land from the defendant on that night that the purchase would have been made for the plaintiff company. Mr. Boyd further testified that he attempted to get in communication with defendant on June 8 by telephone; that he called up the Seed Dry Plate Company and inquired for defendant at three different times on June 8 but was told that defendant was not there. It does not-Mppear from the evidence for what purpose Mr. Boyd desired to communicate' with defendant or what information he desired to convey to him over the telephone. Witness Brown testified for plaintiff that on June 9, defendant came down to the river where witness was fishing and that another gentleman was also present and that defendant said: “I seen Captain Lewis on the train, and he asked if he could reach me today by a letter or anything, and he said, ‘I told him yes.’ They were looking for me yesterday, but I instructed my wife not to answer any telephone or anything, and they asked me tMs morning why I didn’t come down to the office yesterday, and I said I have fooled with you enough and I won’t fool with you any more; that is the reason I didn’t come down.”

This witness further testified: “And we stood and talked awhile and went back over his land and up to his house. Then I came back down to the river again and right away after dinner Mr. Lewis came and this man said, ‘How would your wife reach you with a letter or any way?’ He says, ‘Well, I have got that fixed, if there is anything turns up he can’t find me.’ ” That thereupon defendant and Mr. Lewis went away together, talking. Witness Lewis- testified that on June 9 he went with the defendant out to the land and witness asked defendant if that was the land he proposed to sell for six thousand dollars and the defendant said it was and thereupon witness told defendant that he would accept the offer. That witness wanted defendant to go to the office that night so that witness could pay defendant one hundred dollars but defendant refused to accept one hundred dollars down and wanted five hundred dollars down. The witness then wrote on a card his understanding of the agreement and read it to the defendant and asked him if that was what he understood; but that the defendant said: “That isn’t necessary; I will be at the office of the Meramec Portland Cement & Material Company at two o’clock to meet you.” Witness further testified that defendant failed to keep his agreement to meet him at two o’clock on the following day and that he waited for the defendant at the office until after five o’clock. Witness further testified that he was acting for the plaintiff company on June 91 but that he told defendant he was accepting the offer personally. On June 11, witness received from defendant a postal card stating, that defendant had disposed of the property. On June 11, Mr. Boyd, acting for the plaintiff company, after learning that defendant had disposed of the property, in company with another officer of the company, tendered defendant six thousand dollars in currency; that at the time the tender was made the representatives of the plaintiff told defendant that the tender was made “in payment of the thirty-nine acres of your land at Sherman,- Missouri.” That defendant refused to accept the tender, saying: “I can’t take it.” The evidence on the part of plaintiff further tended to show that defendant did not own any land south of the Missouri Pacific tracks in St. Louis county other than the land in question in this suit and that there were seventy-two acres in the tract, and that this tract adjoined that of plaintiff’s but the location of plaintiff’s said tract does not appear from the evidence. The court found the issues in favor of defendant and dismissed plaintiff’s petition. Thereupon plaintiff duly perfected his appeal to this court.

It is first contended by appellant that the foregoing letters, together with the unsigned paper of May 31, were sufficient to satisfy the requirements of section 2783, Revised Statutes 1909, the section of the Statute of Frauds applicable to transactions of this character, and that therefore a sufficient foundation exists upon which to base its action for specific performance.

We are unable to agreed with this contention. It will be noticed that the only written words which in any manner throw light upon the description of the property sought to be affected are the words, “land south of the Miss. Pac. R. R. tracks,” contained in the unsigned paper of May 31, and the words, “forty-some-odd acres of bottom land you have adjoining us at Sherman, Missouri,” contained in the letter of plaintiff’s vice-president to defendant under date of June 2d.

In the case of Fox v. Courtney, 111 Mo. 147, the land was described as the “ground lying between Missouri avenue and Sixth street on the east side of Grand avenue,” and it was held that the description was not sufficiently certain to satisfy the Statute of Frauds. In that case the court quoted with approval the following rule: “The writing required by the statute ‘must contain the essential terms of the contract, expressed with such a degree of certainty that it may be understood without recourse to parol evidence to show the intention of the parties.’ . . .

‘The writing must be a guide to find the land, must contain sufficient particulars to point out and distinguish the tract from any other.’ ” [Id., l. c. 150.]

The rule that parol evidence is not admissible to supply omitted parts of the memorandum or contract coming within the scope of the Statute of Frauds is correctly stated and fully discussed in the case of Reigart v. Coal & Coke Co., 217 Mo. 142.

The rule here applicable is also stated in Pomeroy on Specific Performance of Contracts (2 Ed), par. 90, as follows:

“The subject-matter of the agreement must all be included in the memorandum, and must be described with sufficient exactness to render its identity certain upon the introduction of extrinsic evidence simply, disclosing the situation of the parties at, and immediately before, the .time of making the contract. Parol evidence is admissible to show the surrounding circumstances and position of the parties, and thus to explain the meaning and application of the descriptive language, and thereby to identify the subject-matter; and all technical terms and other phrases used in a special sense, may he thus, as it were, translated. But if, by this means, the subject-matter is not certainly ascertained, parol evidence cannot be used to go farther and actually supply a substantive part of the agreement, which has been entirely omitted from the memorandum or insufficiently expressed. . . . [or] The description of the subject-matter may be wholly or partially contained in an auxiliary writing, which, if referred to in such a manner as to establish the connection, becomes a constituent part of the memorandum.”

Allowing appellant the full benefit of the above rule, we find that the parol evidence disclosing the situation of the parties at the time the memorandum was made shows that defendant did own a tract of land which adjoined a tract owned by plaintiff company but whether or not this tract belonging to plaintiff was located at Sherman, Missouri, the evidence does not disclose. And furthermore, even if the evidence had so shown, the description of the land sought to be affected would still remain indefinite and uncertain for the reason that the evidence shows that defendant’s said tract contained 72.95 acres and it would be impossible to ascertain from tbe memorandum wbat portion of the above tract should be taken to compose the “forty odd acres” therein men-, tioned.

Several other points, some of which appear to be based upon substantial ground, are suggested by respondent in justification of the decree, but since the conclusion reached on the point above discussed is decisive of the case, it becomes unnecessary to give further consideration to points which also may have justified the action of the trial court in finding the issues for defendant.

The judgment is affirmed.

Roy, G., concurs.

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

All the judges concur.


author: FAEIS, J.

text:
    LAMAR TOWNSHIP v. CITY OF LAMAR, Appellant.
    Division Two,
    July 14, 1914.
    1. TAXATION: Void Levy: Raised by Recipient. In a suit by a township to recover the amount of road and bridge taxes collected by the township collector and county treasurer as ex officio county collector and paid to the city situate within the township, in the honest belief that such taxes belonged to the city, a • defense set up by the city that the levies under which the taxes were collected were void, should be stricken out, on motion. The city cannot justify its right to hold money collected as taxes, on the theory that the levy under which they were collected was void.
    2. -: To Whom Taxes Belong: Depends on Law. To whom public taxes belong and the disposition that can lawfully be made of them, depends on the law, and not upon any idea of fairness.

      3. -: Road and Bridge Taxes: Collected by Township: Division with City. The amendment of 1908 to section 22 of article 10 of the Constitution gave to township boards in counties having township organization the right to levy a tax of twenty-five cents on the hundred dollars’ valuation for road and bridge purposes, to be used for no other purpose; and the Legislature has no authority to enact a statute taking from the township any part of the tax so collected, and any statute that authorizes a division of said taxes with a city situate within the township would be unconstitutional; and Sec. 11767, • R. S. 1909, authorizing such division, is unconstitutional.
    4. -: Paid to City by Mistake of Law. A payment of road and bridge taxes belonging to a township, collected by a township collector and the county treasurer as ex officio county collector, made to the treasurer of the city situated in said township, under the mistaken view that under the law said-taxes belonged to the city, is no bar to a recovery by the township of the money so paid. The rule that a payment made in mistake of law cannot be recovered, does not apply to a municipality. [Distinguishing Schell City v.. Rumsey Mfg. Co., 39 Mo. App. 264, and State ex rel. v. Hawkins, 169 Mo. 1. c. 618.]
    6. PAYMENT: Mistake of Law: Public Officer. A public officer, charged with the collection of public taxes, is not a general agent of the municipality, but only an agent for the purposes defined by law, and of the limitations of his agency the public is bound to take notice. He cannot give away county funds, or disburse them contrary to law, and any payment of them made by him, unless authorized by valid law, even if made under the mistaken and honest belief that the law authorizes it, is not binding upon the municipality, unless the element of estoppel or some other inexorable principle of law intervenes to bar the muncipality’s right to recover back the money so paid.
    Appeal from Barton Circuit Court.— Hon. B. G. Thurman, Judge.
    Affirmed.

      J. B. McGilvray and Edwin L. Moore for aDDellant.
    (1) The petition does not state facts, sufficient to constitute a cause of action. It may state a. case against the collector, but not against the city which innocently received the money. 27 Cyc. 865; Case v. Packing Co., 105 Mo. App. 172. (2) It is against equity and the natural justice of the thing for the plaintiff to recover in this case. Hethcoek v. Crawford Co., 200 Mo. 177. (3) These moneys were not sought to be levied, if at all, under the “special road and bridge tax” of section 117691 which follows the constitutional amendment of 1908, but under section 11767. Green City v. Martin, 237 Mo. 483. (4) There was' really no levy for any of the years involved, and Lamar had just as much right to apply the'money on the public highways as the township had. Secs. 11705, 11709, 11420, 11582 and 11772, E. S. 1909. (5) “Township charges” of 11705 are broad enough to include road and bridge taxes. State ex rel. v. Piper, 214 Mo. 446. (6) The mutilated and spoliated records of the township board were not admissible; such records should only be written up “from memoranda or minutes made by the secretary.” Some of these important entries were made by .the clerk years afterward and rested upon nothing more substantial than his memory. “An omission in a record cannot be supplied from conjecture, but only where the context shows clearly what words are to be added.” Lincoln v. Chapin, 132 Mass. 472 ; 34 Cyc. 590; State ex rel. v. Wray, 55 Mo. App. 655; 37 Cyc. 976; State v. Eailroad, 135 Mo. 77. (7) Counsel will say a levy was unnecessary: He seemed to think it was necessary in drawing his petition, and why cannot we attack .plaintiff’s title? Defendant may do so in replevin, conversion, ejectment, etc. Young v. Glasscock, 79 Mo. 574; Eidsop v. Hedger, 38 Mo. App. 55; Kirk v. Kane, 87 Mo. App. 281. (8) It was not necessary that defendant show a better title than plaintiff; if as good, it will be sufficient. 27 Cyc. 875; 4 Wait’s Actions & Defenses, 511; Bank v. Inv. Co., 160 Mo. App. 380. (9) Money paid under a mistake of law cannot be recovered back. Scbell City v. Mfg. Co., 39 Mo. App. 264; Sparks v. Jasper Co., 213 Mo. 237; State ex rel. v. Ewing, 116* Mo. 137; State ex rel. v. Shipman, 125 Mo. 486; Scott Co. v. Leftwich, 145 Mo. 34; State ex rel. v. Hawkins, 1691 Mo. 618; Williams v. Carroll Co., 167 Mo. 15*; Morgan Park v. Knopf, 199 111. 444; Badeau v. U. S., 130 U, S. 439; 30 Cyc. 1315. (10) Under section 2778 a snit on an implied contract, as that alleged here, cannot be maintained against a city. Perkins v. School District, 99 Mo. App. 483; Savage v. City, 83 Mo. App. 323; Schell City v." Mfg. Co., 39 Mo. App. 264; Crutchfield v. Warrensburg, 30 Mo. App. 456; Anderson v. Ripley Co., 181 Mo. 58; Hook v. City, 144 Mo. App. 144.

      H. W. Timmonds for respondent.
    (1) All moneys arising from the special road and bridge tax shall be appropriated by the township board of directors and there can be no division of it between the city and the township. Green City v. Martin, 237 Mo. 474; State ex rel. v. Everett, 245 Mo. 714; Sec. 22, art. 10, Constitution. Sec. 11767, R. S. 1909, is the only authority for a division of taxes between the city and the township and the Supreme Court has held in Green City v. Martin and State ex rel. v. Everett, supra, that this section does- not apply to the taxes involved in the case at bar. Cities of the fourth class “have and exercise exclusive control over all streets, alleys, avenues and public highways within the .limits of such city.” Sec. 9400, R. S. 190*9. And are empowered to levy and collect taxes on all property within the city limits. Sec. 9400, R. S. 1909. A township is a political subdivision of a county for local governmental purposes and is in a sense a quasi corporation. County roads and bridges are matters of general or public concern, while city streets, sidewalks and alleys have a local and peculiar or corporate character. 1 Dillon on Mnn. Corp. (3 Ed.), secs 66 and 74; Jefferson Co. v. St. Lonis Co., 113 Mo. 625. The funds in question can only be applied to the roads and bridges in th township outside of the incorporated city of Lamar because the city is required by law to maintain their streets and the township has no control over them; the city has power to levy and collect taxes and to appropriate money for maintaining their streets; they act independently of the township; an appropriation of any part of these road and bridge taxes to be used upon the streets of the city of Lamar is a gift or grant within the meaning of the Constitution and any act of the Legislature authorizing any such -gift or grant i's unconstitutional and void. Sec. 46, art. 4, Constitution; State ex rel. v. County Court, 142 Mo. 575. (2) Where money has been received by a collector for taxes-, the money after its reception by the collector, is public money and belongs to the State, county or township for whose use it was collected. Davis v. Bader, 54 Mo. 168; State ex- rel. v. County Court, 142 Mo. 584.- And public moneys can only be paid out for the purposes and in the manner prescribed by law. (3) The general rule of the -common law is that a mistake of law is no ground for relief because “ ignorance of the law excuses no one;” as a general proposition, this rule exists in equity, but like many other general rules, it exists with qualifications. Bispham’s Equity, sec. 187; Story’s Equity (12 Ed.), sec.. Ill; Nelson v. Betts, 21 Mo. App. 229. Where a party acts upon the misapprehension that he has no title at all -in the property, it seems to involve in some measure a mistake of fact; that is, of the fact of ownership, arising from a mistake of law, and courts will grant relief. Story’s 'Equity (12 Ed.), secs. 120,122, 123, 129, 130, 137, 138c, 138f. Relief is sometimes given also in cases of surprise ; that is, where parties have entered into arrangements unadvisedly and improvidently, and without due deliberation; so, also in some cases where the law is confessedly donbtfnl, and the question is one about which ignorance may well be supposed to exist. Bispham’s Equity, sec. 188; Story’s Equity (12 Ed.), sec. 134. Where a mistake of law is attended by circumstances- that render it inequitable for the other party to take, advantage of it, equity will interfere and grant relief. Griswold v. Hazard, 141 U. S. 260; Leach v. Cowan, 140' S. W. (Tenn.) 1077. While recognizing the rule that equity will not extend relief against a mistake of law, courts are ready and even astute to seize upon any element of fact as sufficient in connection with the mistake of law to justify granting the relief. 16 Cyc. 74; McNaughten v. Partridge, 38 Am. Dec. (Ohio) 731; 16 Cyc. 74”. Money paid by one under mistake of his rights and his duties, which he was under no legal or moral obligation to pay, and which the recipient has no right in good conscience to retain, may be recovered back in an action for money had and received, whether such mistake be one of fact or of law.. Northrop’s Executors v. Graves, 50 Am. Dec. (Conn.) 264; Culbreath v. Culbreath, 50 Am. Dec. (Ga.) 375. (4) There is a difference in paying private money and paying public money.by mistake; public moneys cannot be disbursed or given away contrary to law and disbursement by a public officer, contrary to law, is invalid. Morrow v. Surber, 97 Mo. 161; Campbell v. Clark, 44 Mo. App. 253. The rule is that the payment of public moneys by a public officer, by mistake of law, especially when made to another officer, may ■ be recovered back. 30 Cyc. 1315; Ada County v. Gess, 43 Pac. (Idaho) 71; Heath v. Albrook, 98 N. W. (Iowa) 619; Allegheny v. Grier, 36 Atl. (Pa.) 353; Ellis v. State Auditor, 65 N. W. (Mich.) 577. (5) The obligation to do justice rests upon all per-’ sons, natural and artificial, and if a municipality obtains the money, or property of others without authority or by mistake, the law, independent of any statute, will compel restitution or compensation. Wood v. Kansas City, 162 Mo. 312; 15 Am. & Eng. Ency. Law (1 Ed.), p. 1083; Marsh v. Fulton Co., 10 Wall. (IT. S.) 676; Louisiana v. Wood, 102 IT. S, 294; Chapman v. Douglas Co., 107 IT. S. 348'; Morville v. Track Society, 123 Mass. 129; Hathaway v. Cincinnatus, 62 N. Y. 434; Nelson v. Mayor, 63 N. Y. 544; Dillon on Municipal Corp. (3 Ed.), sec. 460; Armstrong Co. v. Clarion County, 5 Am. Eep. (Pa.) 368. “If a municipal corporation received the money or property of another by mistake or without authority of law, it is its duty to restore such money or property to the true owner, or, if used by it, to render an equivalent therefor, from, which obligation the law implies a promise so to do.” 20 Am. & Eng, Ency. Law (2 Ed.), 1158; Argenti v. San Francisco, 16 Cal. 256; Galloway v. Milledgeville, 48 Ga. 300; Cary v. Bast Saginaw, 79 Mich. 73; M. E. Church v. Vicksburg, 50 Miss. 601; Wood v. Kansas City, 162 Mo. 303.
   FAEIS, J.

This is an appeal from the circuit court of Barton county. We get jurisdiction because the case involves a construction of the revenue laws. [State ex rel. v. Adkins, 221 Mo. 112; State ex rel. v. Hawkins, 169 Mo. 615; St. Louis & San Francisco Ry. Co. v. Gracy, 126 Mo. 472; Morrow v. Surber, 97 Mo. 155.]

The learned trial judge with commendable zeal prepared a written statement of the facts, as also his opinion of the law. After examining his findings and conclusions with great care, we have reached the opinion that his views are sound. We therefore adopt his statement of the facts and his opinion as to the law as our opinion herein, adding thereto some supplemental views of our own upon a question of first impression in our courts. This opinion of the trial judge is as follows:

“This is an action by Lamar township, one of the municipal townships of Barton county, against the city of Lamar, a city of the fourth class — the corporate limits thereof being wholly within ■ Lamar township. The petition contains three counts, and seeks to recover certain road and bridge funds levied and collected in Lamar township for the years 1909, 1910 and 1911, and, by the township collector and the county treasurer as ex-officio collector, paid to the treasurer of the city of Lamar. The answer admits the corporate existence of plaintiff and defendant, contains a general denial as to other allegations, and specifically denies that any such taxes were ever legally levied; and alleges that the pretended levies are void; and, the further defense that if any. such taxes were collected and paid to defendant the same were paid under a mistake of law, and for that reason plaintiff is not entitled to recover. There is not much controversy about the facts.

“The plaintiff, Lamar township, undertook to levy a road and bridge tax of ten cents on the $100 for the jmar 1909, twenty cents on the $100 for each of the other years, 1910’ and 1911. The record of the township board with reference to these levies is brief, and it appeared in evidence that the amounts 'of the levies for some of the years were not written in until long after the proceedings of the board were had, and some amendments or corrections in the record were made after this suit was brought. It was shown that the clerk of the board sent to the county clerk a certificate of each levy and -the taxes were extended on the tax books and collected by the township collector and ex-officio collector. That all of such taxes collected within the corporate limits of the city of Lamar were paid to the treasurer of the city of Lamar, and used by the city. At that time the city did not keep a separate street fund, or at least for the first two years, but sums equal to and in excess of the amounts so paid into the city treasurer were expended on the streets of the city of Lamar. Settlements were made with the township hoard by the collector and ex-officio collector, and • the township board knew, or should have known, of the payments to the city of the portion of the road and bridge tax collected within the corporate limits of the city. The fact is, that all thought, under the law, it was the duty of the collector to pay all road and bridge taxes levied by Lamar township and collected from citizens living within the corporate limits of the city of Lamar to the city treasurer, until after the decision of the Supreme Court in the case of Green City v. Martin, 237 Mo. 474. The taxes so collected and paid to the city treasurer for the use of the city are as follows: 1909, $714.30; 1910, $1455.30; 1911, $1389.81. So if the plaintiff is entitled to recover in this action the judgment should be for these sums and interest from date of demand, August 5, 1912.

“There was a motion filed by the plaintiff’s counsel to strike out the defense of void levy, etc., but not having been taken up before the case was called for trial, it was agreed by counsel that the trial might proceed and the questions involved in the motion determined in passing on the case, as the testimony was short and it was more convenient to argue the motion with the case on its merits.

“I. The first question presented by the record is raised by the motion of the plaintiff to strike out the defense of ‘void levy.’ Can the defendant city money collected from the taxpayers by Lamar township because the levy upon which the collection was made is void? The court is of the opinion that the defendant city cannot avail itself of this defense. The taxes were actually extended on the tax books and regularly collected by the' ■ collector of the township, and thereby become public funds for the purpose for which collected and it does not he in the mouth of any one but a taxpayer to dispute the validity of the levy. If the defendant city can defend the suit on that ground, the collector could have pocketed all the taxes so collected and defeated a suit for the same or 'a prosecution for embezzling the funds. The contention carried to its legitimate results would enable the custodians of the funds of these municipalities to embezzle them with impunity, for the records made by persons not learned in the law and with little idea of forms by these municipalities rarely measure up to the full requirements of the law. This defense should have been stricken out on plaintiff’s motion.

‘ ‘ II. Do these taxes levied and collected by Lamar township, from the citizens living within the corporate limits of the city, belong to -the plaintiff township or defendant city? That it would seem fair for the city of Lamar to have them, all must admit. bt is so recognized by our Legislature, as shown by their repeated efforts to pass and in passing such law. To whom public funds belong and the disposition that can lawfully be made of them, depends upon the law and not upon sentiment or anyone’s idea of fairness. So it becomes the court’s duty to be governed by the law and not by personal preference of the individual who discharges the judicial function.

“In the year 1908 the people adopted an amendment to the Constitution designated as section 22, article 10. Under section 11 of article 10, the limit of the county tax is fifty cents on the $100-, and this includes road tax and township tax, the total limit being fifty cents on the $100'. The county levies are generally as much as forty cents on the $100. The record does not .disclose the levies in 1909, 1910 and 1911, but the constitutional amendment became necessary in order to have a sufficient road and bridge fund to keep up the work on the public roads. This section gives the right to the township board to levy a tax of twenty-five cents on the $100 for ‘road and bridge’ purposes, anti it provides that such tax when levied and collected shall be used ‘for no other purpose whatever;’ the only authority the township board had for levying the twenty cents on the $100 was-this section 22 adopted as an amendment -to, the Constitution. Before the adoption of this section Lamar township could not have levied more than fifteen cents on the $100. [Green City v. Martin, 237 Mo. 474.]

“It is clear under this section of the Constitution (Sec. 22) that of the road and bridge tax therein authorized to be levied and collected by Lamar township, no division could be made with the city of Lamar. It is required to be used for the roads and bridges within the township, and not upon the streets of the city. In the face of this constitutional prohibition no law could be passed by the Legislature taking away, from the township one cent of the public funds authorized to be levied under it. This is not only clear from the express words of the Constitution, but it has been so decided by our Supreme Court in the G-reen City case. It is contended by defendant’s counsel that the road and bridge tax levied, collected and sought to be recovered by the plaintiff’s suit is not the road and bridge tax contemplated or provided for by this constitutional amendment; that it is the road tax provided for b}r section 11767 passed by the Legislature in 1909, and it is therein expressly provided that the part collected from citizens within the corporate limits of the cities and towns shall be turned over to the treasurer of such cities and towns. There are two reasons why the court cannot adopt this construction. In the first place, this section of the statute was not in force when the levy was made in April,- 1909, and the levy for all the years are substantially the same. For the levy of 1909 the court is forced to accept the constitutional amendment in 1908, for authority to warrant the township hoard in making the levy; hut a more cogent reason is found in the fact that under the construction placed on section 46 of article 4 of the Constitution no such division can be made and a statute that authorizes it is void. [State ex rel. v. County Court, 142 Mo. 575.] The statute under consideration in that case was section 7903' passed in 1897.’ [Laws 1897, p. 218.] This act authorizes counties to pay to cities' and towns taxes collected within the corporate limits of such cities and towns to such cities and towns for improve- • ments of the streets. The Supreme Court, speaking through Judge Burgess, calls attention to the fact that counties and cities are independent of each other in their governmental functions; that the duties and obligations of cities and counties in building and maintaining roads and streets are very different. .That decision is. not based on the fact that it was sought to divert a part of the public revenue of the county, and not a part of the road tax of the county. Had that been the basis of the decision, the court would not have expressly held the statutes unconstitutional, but would have held that the city of. Kirk-wood sought to obtain funds which could not be set apart and used for that purpose by the court. It is suggested by the counsel for defendant with much force, that the Supreme Court in the Green City case had recognized the validity of section 11767, Revised Statutes 1909, and that case could have been disposed, of without going into the intricate distinction as to the kind of road tax provided for by the constitutional amendment and by section 11767. The fact that the point is nowhere raised by the brief of the counsel or referred to by the court, and the further fact that the distinguished jurist in writing the opinion, declines to say ‘yea’ or ‘nay’ on other questions raised by brief of counsel, is a cogent reason why that case should not now be construed as any authority in support of the validity of section 11767. The same» is true of the case of State ex rel. v. Everett, 245 Mo. 706. The court regards it as a duty to follow what the Supreme Court does say in its decisions rather than what it may say by plausible inference. Section 46 of the Constitution construed in the Kirkwood case, 142 Mo., supra, is reasonably clear and the construction placed upon section 46 in that case is logical and this court is of the opinion that the Legislature has no power to pass a statute authorizing the township to pay the part of the road taxes collected in the cities and towns into the treasury of such cities and towns. The court is satisfied, under the law, the road taxes collected by the township collector and paid into the city treasury belong to the township.

“III. The taxes collected and paid into the city treasury by the township collector and ex-officio collector were so paid because these officers understood and believed it was their duty, under the law, as was §’eneraUy rmderstood by the officers of both plaintiff and defendant, so that if the court is right as to its construction of the law, these payments were made under a mistake of law. The payments having been so made, can the plaintiff recover the money by action at law? The authorities are not uniform on this question, and in the judgment of the court it is the most doubtful question involved in the case. As between individuals, payments under a mistake of law cannot be recovered. The court has examined the authorities cited in briefs of counsel, and has reached the conclusion that, in Missouri and in the best reasoned cases elsewhere, municipalities constitute an exception to the general rule. The case of Morrow v. Surber, 97 Mo. l. c. 161, clearly recognizes the exception to the general rule and is much in point. The case of Schell City v. Rumsey Mfg. Co., 39 Mo. App. 264, cited by defendant’s counsel, supports the contention that payments under mistake of law cannot be recovered back. The facts in this case, without the application of this rule, clearly warrants the decision on the recognized rule that a municipality cannot accept the benefits of a void contract and retain them and recover back the consideration paid. This principle was recognized in the case of Aurora Water Co. v. Aurora, 129 Mo. l. c. 574, in a very able opinion by Judge Sherwood. In other words, municipalities will not be permitted to ignore every principle of common honesty, even though their officers do exceed their authority under the law in dealing with the public. In the Schell City case the officers of the city bought machinery from the defendant and paid part of the purchase price. The contract of purchase was held void, being unauthorized by law. Thereupon the city while retaining the fruits of the contract, brought suit to recover back the money paid on the contract, and the Court of Appeals denied the right to recover back the money paid on the contract and based their opinion on the general rule that money paid under a mistake of law cannot be recovered back. But reading that case in connection with Sparks v. Jasper County, 213 Mo. 237, it will be seen that the case is only treated as authority for the proposition that municipal corporations cannot retain property bought on a valid contract and recover back the consideration paid for it. The language of the court in Ada County v. Cess, 4 Idaho, 611, appeals to this court as a correct statement of the law. That court, among other things, says: Some authorities go so far as to hold that payments of public moneys under mistake of law cannot be recovered back. The doctrine is so' repugnant to every principle of justice and common honesty that the latter cases do not, by their reasoning, commend themselves to this court. We cannot consent to carry the doctrine beyond settlements between individuals.

“A settlement made by an individual and a corporation binds the individual and these cases have caused some misunderstanding as to the law. The court holds that the public money of municipal corporations paid out by its officers under a mistake of law can be recovered back at the suit of‘such corporation.

“It is contended by defendant’s counsel that if the construction our court puts upon the constitutional provisions, and statute passed, using the same language, he correct, then both are void, being in violation of the Federal Constitution requiring equal taxation. That is to say, the taxing of the citizens of Lamar, a separate municipality, for the benefit of Lamar township, would be to require the citizens of Lamar to bear this. burden without securing any benefit. The court thinks that counsel overlooks the fact that every citizen of Lamar is a citizen of Lamar township and has the right to participate in the administration of the affairs of the township. The improvement of the public highways are as important to the citizens ®f Lamar as the citizens living outside of Lamar in the township, hut it is not true that the citizens of Lamar township are citizens of Lamar, or have anything to do with or control over, the administration of the affairs of the city. The property-owners who choose to live in a city or town, must bear the burden of taxation for the support of the city government, as well as State, county and township' government. This may not seem fair, but it is the law.

“It follows from what has been said that the judgment must be for the plaintiff, on the first count for $714.31, together with interest thereon from August 5, 1912, to this date, at the rate of six per cent per annum, amounting to $46.79, an aggregate of $761.10; on the second count for $1455.30, together with interest thereon from August 5, 1912, to this date, at the rate of six per cent per annum, amounting to $95.32, an aggregate of $1550.62; on the third count for $1389.81, together with interest thereon from August 5, 1912, to this date, at the rate of six per cent per annum, amounting to $91.03, an aggregate of $1480.84; aggregating in all the sum of $3792.56, and it is so ordered.”

As stated by the learned judge nisi there is no particular difficulty in reaching the conclusion that the city of Lamar, as against the township of Lamar, is not, and was not, entitled to any of the road and bridge fund collected in Lamar township, pursuant to the levy made therein for the years mentioned. The ease of Green City v. Martin, supra, settles this point beyond cavil.

The serious question and the one as to which appellant most earnestly and strenuously contends, is whether the rule that money paid without protest or duress, under a mistake of law, cannot be recovered, applies as between officers of municipal corporations dealing with the money and the property of the public. That individuals may not recover money so paid, absent fraud, protest or duress, is too well settled for argument. [Needles v. Burk, 81 Mo. 569; Savings Institution v. Enslin, 46 Mo. 200; Campbell v. Clark, 44 Mo. App. 249.] Likewise in other jurisdictions this rule so far as it applies to individuals, sui juris, dealing with their own property, is well nigh without exception. [301 Cyc. 1313, and cases cited.] The reason for the rule as between individuals (which while sometimes provocative of great miscarriages of justice, and while largely predicated upon expediency) is yet bottomed upon some considerations which are logical and wrell settled. Among these (but when wrong is being done, clearly not chief among these), is the maxim ignorantia legis neminem excusat. Likewise the rule touches nearly upon the doctrines of accord and satisfaction, and of estoppel; as also upon the rule forbidding the unsettling of things settled and thereby disturbing repose by clamorous litigation.' Other maxims, e. g. volenti non fit injuria, have likewise been invoked; but confessedly even among individuals, unless the peculiar facts of the case also warrants the application of the rule ex aequo et tono, there is little logic and less of honesty in putting it upon such an excuse. The best that may be said of the rule even as applied to individuals, is that it is a handy rule to apply in those rare cases where the application of it prevents gross injustice. [See, arguendo, Schell City v. Rumsey Mfg. Co., 39 Mo. App. 264.] .

Certainly in a case like this of dealings between public officers with the public’s money, no excuse for invoking this rule can be found in logic, nor in our opinion can such excuse be found in the decided cases. The rule in such case is thus stated in 301 Cyc. 1315: “Although there are cases holding the contrary, the better rule seems to be that payments by a public officer by mistake of law, especially when made tó another officer, may be recovered back.” [Ada County v. Gess, 4 Idaho, 611; Heath v. Albrook, 123 Iowa, 559; Ellis v. State Auditors, 107 Mich. 528; Allegheny Co. v. Grier, 179 Pa. St. 639; State v. Young, 134 Iowa, 505; McElrath v. United States, 12 Ct. Cl. 201.]

In the case of Ada County v. Gess, supra, in a very able discussion of this identical question, the court said:

“As the county is a municipal corporation, it may sue and be sued, and we know of no limitation as to time, except that provided in the general limitation laws of the State. We are told, however, that money paid through a mistake of law is a voluntary payment, and cannot be recovered back; and we are cited to the case of Badeau v. United States, 130 U. S. 439, as sustaining that doctrine, but it does not do so. Chief Justice Fuller, in' that case, did not place his decision on the ground that money paid by one officer of the government to another officer is a voluntary payment that cannot be recovered back, but upon the ground that the claimant, although retired, was still an officer of the army de facto, if not de jure, and for that reason he was entitled to the money received, and it could not he recovered back, and ex aequo et bono should not be returned. Some of the authorities cited, however, seems to sustain the contention of the appellant, and some authorities go so far as to hold that payments of the money of the public by its authorized agent to an officer on account of a mistake of law cannot be recovered back. The doctrine is so repugnant to every principle of justice and common honesty that the latter cases do not, by their reasoning, commend themselves to this court. We cannot consent to carry the doctrine beyond settlements between private individuals.” [Ada County v. Gess, 4 Idaho, 611.]

In the case of Allegheny Co. v. Grier, supra, the court said:

“So, on the grounds of public policy, the court was right in holding that the maxim ‘Volenti non fit injuria-’ has no application to the illegal payment of public funds to a public officer — more especially where, as here, it is the peculiar function of that officer to guard the public treasury. Public revenues are but trust funds, and officers but trustees for its administration for the people. It is no answer to a suit brought by a trustee to recover private trust funds that he had been a' party to the devastavit. There could be no retention by color of right. [Abbott v. Reeves, 49 Pa. St. 494.] With much the stronger reason is this doctrine applicable where the interests of the whole people are involved, and the authorities are accordingly numerous' to this effect. [New Orleans v. Finner’ty, 27 La. Ann. 681; Allen v. Com., 83 Va. 94; Cora. v. Field, 84 Va. 26; Day Co. v. State, 68 Tex. 526; Steamship Co. v. Young, 89 Pa. St. 191; Taylor v. Board of Health, 31 Pa. St. 73 ; Smith v. Com., 41 Pa. St. 335, and cases cited.]” [Allegheny Co. v. Grier, 179 Pa. St. 639.]

Officers are creatures of tire law, whose duties are usually fully provided for by statute. In a way they are agents, but they are never general agents, in the sense that they are hampered by neither custom nor law and in the sense that they are absolutely free to follow their own volition. Persons dealing with them do so always with full knowledge of the limitations of their agency and of the laws which, prescribing-their duties-, hedge them about. They are trustees as to the public money which comes to their hands. The'rules which govern this trust are the law pursuant to which the money is paid to them and the law by which they in turn pay it out. Manifestly, none, of the reasons which operate to render recovery of money voluntarily paid under a mistake of law by a private person, applies to an officer. The law which fixes his duties is his power of attorney; if he neglect to follow it, his cestui que trust ought not to suffer. In fact, public policy requires that all officers be required to perform their duties within the strict limits of their legal authority.

Neither, so far as counsel have invited our attention or we have been able to find, is this view in conflict with anything which has been ruled by us in this State. The case of Schell City v. Rumsey Mfg. Co., 39 Mo. App. 264, applies a different rule. But there were among the facts there held in judgment a peculiar condition of estoppel existing, which fairly distinguishes that case from this. Besides, that was not a case where one officer of a municipality was dealing with another officer of another municipality; there a municipality was dealing with a private business corporation. Concededly, however, the broad rule laid down largely by dictum in that case is not in harmony with the views we are now here holding. In Campbell v. Clark, 44 Mo. App. 249, the rule here urged was approved.

The case of Morrow v. Surber, 97 Mo. 155, is in . accord with what we here hold, though the court there went beyond the precise point up for ruling, in order to say that upon the facts there a private individual even would have been entitled to recover. Upon the two points touching the rule as it affects a' public officer, and as it affects a private person, the court said in that case:

“Such a mistake as is here described furnishes ground for recovery of the money in this action. The plaintiff is the custodian of the county funds and sues here in his official capacity. Pie is agent of the county for the purposes defined by law, and the public is bound to take notice of the limitations of his agency. He cannot give away county funds or disburse them contrary to law. Any such disbursement is entirely invalid. If this case were between private citizens, the undisputed facts would support the judgment-given by the circuit court under the settled law of this State. [Columbus Ins. Co. v. Walsh, 18 Mo. 229; Koontz v. Bank, 51 Mo. 275.] ”

The other, cases of Scott Co. v. Leftwich, 145 Mo. l. c. 34; State ex rel. v. Shipman, 125 Mo. 436 ; State ex rel. v. Ewing, 116 Mo. 129; and State ex rel. v. Hawkins, 169 Mo. 615, were all cases of settlements made by the county with county officers, i. e., circuit clerks and county collectors. Formal settlements in-* tervened, which settlements were set down upon the solemn records of a court of record. The shadowy reason behind the holdings in these cases smacked of the doctrine of res adjudicate,, and accord and satis- ' faction. In fact, this is the chief ground upon which the ruling is made in the latest case cited, to-wit, State ex rel. v, Hawkins, wherein at page 618 it is said:

“It also appears that the defendant Hawkins and the county court, at the March term, 1898, had a full settlement of his accounts of the revenue collected by him in 1897, and with full knowledge of his claim for $216 commissions on back taxes collected sby him that year, the court allowed him that credit. There is no charge of fraud or collusion in the case.

“Whether the court erred in allowing that commission on back taxes for that year, the settlement is binding and conclusive in the absence of fraud, collusion or mistake. [State ex rel. v. Ewing, 116 Mo. 129; State ex rel. v. Shipman, 125 Mo. 436.] The item of $216 is no longer in the case.” [State ex rel. v. Hawkins, 169 Mo. l. c. 618.]

Moreover, these cases may all be distinguished from the case at bar. Here there was no settlement whatever. The township collector 'and the county treasurer erroneously believing that under the law it was their duty to pay this money over to the treasurer of the city of Lamar, proceeded to do so. If this township collector had been of the belief that under the statute it was his duty to pay this identical money over to the clerk of this court and had at once done so, would it not be fairly plain that some sort of action would be maintainable to recover the money from our clerk? Such a rule as is contended for by the appellant might and could become a mighty instrument of evil and might (since there is no gauge by which to measure the kind and nature of the mistake of law which will serve to excuse) be used to defend against all manner of thefts and larceny and the illegal frittering away of the public money. While the question presented is a new one and a nice one so far as the' precise facts here held in judgment are concerned, we yet think the learned trial court correctly resolved it. It results that the judgment should be affirmed. Let this be done.

Walker, P. J., and Broten, J., concur.


author: BROWN, J.

text:
    JOE N. ROBY et al., Appellants, v. JACK SMITH et al.
    Division Two,
    July 14, 1914.
    1. DEED OF TRUST: Sale: Redemption: Laches: One Year and Eleven Months. Where the cotenant in possession offered to pay off the note secured by a deed of trust on the property, and the legal holder (the defendant) refused to indorse the note to him unless it was to be marked paid, and for that reason the tender was not continued, and about four weeks after the sale to said mortgagee that cotenant surrendered peaceable possession to him, and he proceeded to construct buildings thereon worth three times the value of the property at the time of the sale, and the said mortgagors delayed for one year and eleven months after the sale was made before bringing suit to set the sale aside, and gave him no notice that they claimed the sale was unfair and though aware of the improvements being erected made no objection thereto and asserted no claim to the property, their delay in instituting their suit bars their right to recover.
    2. —-: -: -: Inadequacy of Price. Inadequacy of price is not alone a sufficient ground for setting aside a sale under a deed of trust; and though the property sold for one-fourth its value, and though one of the mortgagors offered to pay the mortgage note before the sale, but the tender was refused because he was not willing to have the note marked paid but wished to have it indorsed to him, yet if the preponderance of the evidence is to the effect that the sale was fairly conducted, and after it was made the property was peaceably surrendered to the mortgagee as purchaser, and he proceeded to make valuable improvements thereon, and the mortgagors, though aware of such facts, made no claim to said property or objections to said improvements, the sale will not be set aside at their suit instituted one year and eleven months after said sale.
    Appeal from Greene Circuit Court. — Hon. Guy D. Kirby, Judge. . .
    Affirmed.

      Oscar B. Elam for appellants.

      .(1) By notifying Joe Roby that he would not accept payment of the note unless Roby would first agree to let the note be marked paid, Smith waived the necessity of and actual tender of the money due on the . note. 38 Cyc. 134,144; Stephens v. Kilpatrick, 166 Mo. 262; Westlake v. St. Louis, 77 Mo. 47; Johnson v. Gñarlichs, 63 Mo. App. 578; Walsh v. St. Louis Exposition Assn., 101 Mo. 534. (2) After notifying Joe Roby that' he would not accept payment of the note unless Roby would first make an agreement with him, Jack Smith had no right to cause the deed of trust on the land to be foreclosed in the absence of an unsuccessful demand upon the heirs or legal representatives of Almeda Weaver for payment of the note, Almeda Weaver being dead. 27 Cyc. 1386. (3) As the heirs-at-law of Almeda Weaver, the Robys had the right to discharge the lien of the. deed of trust by payment of the debt secured thereby. 27 Cyc. 1386; Sharp v. Garesche, 90 Mo. App. 233. A tender may be made by anyone having an interest in the consequences of the tender. Kincaid v. School District, 11 Me. 189; 7 Wait’s Actions and Defenses, 578; Gould v. Armagost, 46 Neb. 897; Kartright v. Cady, 21 N. Y. 343; McDougald v. Dougherty, 11 Ga. 588. (4) Defendants are not entitled to any consideration on the grounds of being innocent purchasers. They neither plead nor attempt to prove such a defense. Holdsworth v. Shannon, 113 Mo. '524. (5') Where the price bid is clearly inadequate, but not grossly so, where there are other circumstances rendering it inequitable to let the sale stand, the courts have set the sale aside. Hardware Co. v. Brownlee, 186 Mo. 621; Yail v. Jacobs, 62 Mo. 130; Judge v. Booge, 47 Mo. 544; Stoffel v. Schoeder, 62 Mo. 147. (6) Wherever the least fraud or unfairness appears, the court will always unhesitatingly give relief. Clark-son v. Creely, 40 Mo. 114; Barnard v. Duncan, 38 Mo. 170; Powers v. Kneehoff, 21 Mo. 430; Rutherford v. Williams, 42 Mo. 19; McNew v. Booth, 42 Mo. 192■; Crumley v. Webb, 44 Mo. 444; Goode v. Comfort, 39 Mo. 327, 328 ; Thornton v. Irwin, 43 Mo. 153; Dover v. Kennedy, 38 Mo. 469; Mangold v. Bacon, 229 Mo. 493, dissenting opinion.

      McNatt é McNatt for respondents.
    (1) The evidence of all the witnesses testifying on the point shows that defendant Smith purchased the note from payee Froley and that the same was properly indorsed. But if the indorsement was never put on the note the defendant Smith was the legal holder of said note. Sec. 10019', B. S. 1909. (2) Plaintiff alleged, and must prove, an unconditional tender, and even such tender does not defeat the lien of the deed of trust. Knollenberg v. Nixon, 171 Mo. 445. (3) The court having found that the preponderance of the evidence showed no unfairness in the sale of the land, inadequacy of price alone is not sufficient to set the sale aside. Keith v. Browning, 139 Mo. 190; Harlin v. Nathan, 126 Mo. 97. (4) The plaintiffs, by their laches, waiting until the rights of innocent purchasers intervene, are not entitled to set aside the sale. Beady v. Smith, 170 Mo. 174; Baker v. Cunningham, 162 Mo. 144; Kline v. Vo,gle, 90 Mo. 247. .
   BROWN, J.

Action to' redeem real estate from sale under a deed of trust. From a judgment for defendants, the plaintiffs prosecute their appeal to this court. This suit was instituted in the circuit court of Lawrence county and transferred, by change of venue, to the circuit court of Greene county.

Almeda Weaver of Aurora, Missouri, owned a borne in said city, upon which she placed a deed of trust for $100' on September 26, 1907, to secure a loan of that amount from C. W. Froley. ’ M. T. Davis was made trustee in this deed of trust.

Mrs. Weaver died October 20, 1907, leaving five-children, all adults, surviving her. The names and residences of her respective children were as follows: James H. Roby, Oklahoma; Emfüa Kice, Kansas City, Missouri; S. M. Roby and A. A. Roby, Joplin, Missouri; and Joe N. Roby, who resided with her upon the encumbered property. Mr. Froley sold the $100 note secured by the deed of trust to Jack Smith, prin- . cipal defendant in this action. On November 2, 1908, defendant Smith caused the deed of trust to be foreclosed and purchased the property at the trustee’s sale for $125. The object of this action is to set aside the trustee’s sale and the deed made thereunder.

The plaintiffs and A. A. Roby are the legal. heirs of Almeda Weaver, deceased. Said A. A. Roby having refused to become a plaintiff, was named as' one of the defendants.

The plaintiffs aver in their petition that before the property in controversy was advertised for sale by the trustee (Davis), the plaintiffs tendered to the defendant Smith all the indebtedness secured by the deed of trust, and said defendant refused to accept such tender. That at the sale the trustee accepted defendant’s bid of $125 and refused to accept or cry a higher bid made by a solvent party. That the property was worth at the time of the sale $1250' and would rent for $10 per month; that the rental of said property during the time it has been in the defendant’s possession is more than sufficient to extinguish the debt for which it was sold. Wherefore,, plaintiffs demanded to be permitted to redeem the property, and if a balance was found due defendant Smith after charging bim with rents as aforesaid the plaintiffs be adjudged to pay the same. Plaintiffs further prayed “that such orders and judgments and decrees be made in the premises as will adequately protect the rights of all parties in interest, whether specifically asked for herein or not, to the end that the very rights of all the parties may be protected.”

The answer of defendant Smith avers that he bought the property in-good faith, and that, after his purchase thereof in November,. 1908, he made many improvements upon the dwelling house and erected a business house thereon, expending altogether about $2500 in making permanent improvements before he received any knowledge or notice that'plaintiffs set up any claim to said premises. Wherefore, he asserted that plaintiffs were, by their delay and laches, estopped from contesting the validity of said trustee’s sale or asserting title to said property.

The only plaintiff who testified in the case was S. M. Roby, wIiq stated that three of the heirs of his mother offered to pay off the $100 lien placed upon the land in controversy; that he gave his brother Joe N. Roby a check for $38 to cover, his part of the expense of paying said debt. No other details of the alleged tender were given by this witness.

The only other evidence of an offer to redeem comes through the cross-examination of defendant Smith, who testifies as follows:

‘ ‘ Q. Tell the court if anybody at any time offered to pay this note. A. After I got the note, after Mr. Froley sold me the note, I don’t remember how long it was afterwards, Roby met me one day, and says, ‘I have got the money to pay that note off,’ and I says, ‘If you will meet me at the People’s Bank in about twenty minutes you can pay it off, ’ and I waited there a few minutes, and he came in and said, ‘If I pay that note off, you make it just like you got it from Froley. ’ I says, ‘If you pay it off, I will let the cashier mark it paid,’ and I says, ‘If you have got the money to pay that note off, you could pay for the groceries you have bought.....’

‘ ‘ lie said he had the money to pay it off; he said that he would meet me at the bank in fifteen minutes, and lie said lie wanted it signed over just like he wanted it, and I told him if he had the money to pay off this note, he' could, pay for the groceries that he got several years ago; if he paid it off I wanted the cashier to mark it paid. ■

. “Q. That’s the only thing that kept you from settling this matter? A. After it was marked paid by the cashier I said I would turn it over to him;. he said he wouldn’t do it, and he turned and walked out of the bank.

“Q. You refused to accept the money until the cashier marked it paid, did you? that is the only reason that Joe Eoby didn’t pay that note that day down there at the bank, is because you wouldn’t take the money until the cashier marked the note paid? A. I didn’t see any money; I told him if he would let the note be marked paid I would turn it over to him.

“Q. Down there at the bank about a month before the sale under the deed of. trust, before the note was due, you met Joe Eoby? A. I couldn’t tell you; I might have met him every day.

“Q. You met him there at the bank for the purpose of making a settlement of this note? A. Yes, sir; met him there for the purpose of paying it off.

“Q. Now, after the note was due, you told Joe Eoby you would meet him at the bank, where he could pay that note off? A. Yes, sir.

“Q. After you got down there, you told Joe you wouldn’t take the money unless he would first let the cashier mark the note paid? A. That’s what I told him. . . .

“Q. He told you he wanted you to endorse it just as you had gotten it, and you refused to do it? A. Yes, sir.”

Said plaintiff S. M. Eoby stated that he knew his brother Joe N. Eoby was living in the property when the deed of trust was foreclosed. Heard of the. sale about two weeks after it took place; heard that defendant Smith moved into the house three or four weeks after the sale. Said witness further stated that his brother returned the check for $38 about two weeks after it was given. He refused to become a partly plaintiff when the suit was • first' instituted, but did subsequently become a plaintiff in the case.

Defendant Smith further testified that he never heard of any defect in the trustee’s sale, nor of any intention on the part of plaintiffs to set up a claim to the property until after he made the improvements hereinbefore mentioned.. Said witness'also stated that plaintiff Joe N. Roby peacefully turned over to him the keys and possession of the property a few days after the trustee’s sale. The evidence tended to show that the property was out of repair when sold by the trustee and worth between five hundred and a thousand dollars.

Evidence concerning the alleged misconduct of the trustee at the sale, and such other facts as are necessary to an understanding of the case, will be noted in connection with our conclusions.

OPINION.

I. The evidence in regal'd to the alleged tender of the amount of the debt for which the trustee sold .the property establishes the fact that the plaintiff Joe N. Roby' offered to purchase from defendant Smith the note representing the encumbrance on the land. That Smith without declining the amount due him did decline to sell the note or deliver it until it was paid. "Whether these facts amounted to a tender we need not decide, because the case breaks upon another issue to be noted in paragraph three "of this opinion.

Bjd

II. Concerning the alleged fact that the trustee refused to cry or consider a bid made at the sale by C. W. Froley, a solvent party, it was shown that only two bids were made at snch sale; the first one was $100, and the second $125. "Witness Froley testified that he attended the sale, intending to buy the property if it did not sell for over $800. That he stood ten feet away from the trustee and bid $200, but the trustee paid no attention to his bid and declared the property sold for $125. Witness Froley does not say that he interposed any objection to the action of the trustee in refusing to consider his bid while the sale was progressing, but states that after •the sale was over, and the bidders had dispersed, he went to the bank where Mr. Davis was at work and told him that the sale was unfair. One other witness corroborated Mr. Froley in regard to his alleged bid of $200-. Two witnesses testified that Mr. Froley was not present at the time the sale was advertised to take place and the trustee telephoned for him to come to the sale, which he did, but made no bid. Mr. Davis, the trustee, testified, denying that Froley made a bid or made the statement to him about the sale being unfair. Five other witnesses who attended the sale, one of whom was acting as attorney for the Roby heirs, stated that no bid was made by Mr. Froley. On the foregoing evidence we hold that the charge that the trustee refused to consider all the bids made at the sale was not proven by a preponderance of the. evidence.

III. We come now to the alleged laches of plaintiffs in delaying the institution of their suit, and in failing to promptly assert title to the property. The trustee’s sale took place November 8, 1908, and this action was instituted on October 17, 1910, one year and eleven months after the sale. The defendant Smith testified that he spent almost $2500 on the property in the form of permanent im-' provements before he was notified of the plaintiffs’ claim. The making of the improvements was also proven by other testimony. There was no evidence of any hidden defects in the sale, nor of any secret fraud on the part of defendant Smith. All of his acts were open and known to plaintiffs.

S. M. Roby, the only plaintiff who testified, knew of the sale, and that defendant had entered into possession within four weeks after the sale occurred, yet he does not claim to have notified defendant that he was dissatisfied with the sale. In fact he declined to become a party plaintiff until other heirs had instituted the suit. Joe N. Roby who was in possession of the property, presumably as the agent of his co-plaintiffs, • gave up his possession without a protest. This act would naturally lead defendant to believe that the validity of the sale would not be contested.

In his answer, as well as in his testimony, defendant Smith states that, during the time he was making improvements on the property, plaintiffs did not assert any claim thereto. With this answer on file plaintiffs did not offer one word of evidence tending to prove that while defendant Smith was making the improvements (which at least trebled the value of the property in controversy) they ,gave him any kind of notice of their claim; neither have they proven that they were unaware of the fact that such improvements were being made. Upon this showing was the circuit court’s judgment for defendants erroneous 1 The right to maintain a suit in equity is not always governed by the Statutes of Limitation. The right of a party seeking to set aside a sale which is not void, but merely voidable, is often barred by a lapse of time far less than the period prescribed by the statute. This for the reason that equity favors the diligent and will turn a cold face upon those who sleep upon their rights for an unreasonable period, during which time the party in possession is making permanent improvements. [Landrum v. Union Bank, 63 Mo. 48; Bucher v. Hohl, 1991 Mo. 320, l. c. 330; Rutter v. Carothers, 223 Mo. 631, l. c. 640; Ready v. Smith, 170 Mo. 163; Baker v. Cunningham, 162 Mo. 134.]

In the case of Ready v. Smith, 170 Mo. 163, a recovery was denied in a suit to set aside a trustee’s sale where the action was delayed only a year and ten months, during which time the property had been sold to a third party. It is true that the facts in Ready v. Smith, supra, are not the same as in the case at bar, but the facts in equity cases are nearly always different in some particular. However, when all the facts in the present case are considered, the delay of the plaintiffs for a year and eleven months to institute their .suit, or otherwise assert title, during which time the expenditures made in good faith by defendant Smith more than trebled the value of the property in dispute, fully warrant the judgment for defendants.

IY. Plaintiffs also assert in their1 brief that defendant Smith instituted a suit for the purpose of clouding the title and deterring bidders the trustee’s sale. But this contention is outside the pleadings and not sustained by the evidence. We will not encumber the opinion with a further discussion of it.

Y. It is to be regretted that the property in controversy brought at most not more than one-fourth of the, trustee’s sale, but such things frequently happen, and will continue to happen as long as people encumber property for debts which they do not or cannot pay. By the great preponderance of evidence before us we find that the sale was conducted fairly and that the judgment should be affirmed. It is .so ordered.

Walker, P'. J., and Paris, J., concur.