author: BROWN, C. PER CURIAM:

text:
    SARAH JANE McGEHEE et al., Appellants, v. FRANK GARRINGER, R. N. MOORE, et al. SARAH JANE McGEHEE et al., Appellants, v. DENNIE GARRINGER et al.
    In Banc,
    October 11, 1920.
    1. DEED AS MORTGAGE: Payment of Debt: Reinvestiture of Title. Satisfaction of a mortgage reinvests the mortgagor with his original title; but where a deed absolute on its face is made to the creditor, and contains no defeasance, although made as security for a debt, payment of the debt does not reinvest the grantor with the title.
    2. -: Conveyance by Grantee to Grantor’s Wife: Recital. William Garringer and wife conveyed land to Young by warranty deed. Four years later Young by quit-claim deed conveyed to Garringer’s wife Nancy, reciting therein: “This land was conveyed to me to secure attorneys’ fees due myself and John G. Wear, and William Garringer has paid said Wear the fees. The deed is absolute on its face, was intended between the parties as a mortgage.” Held, that, the deed to Young being absolute on its face and expressing no defeasance, even if made to secure a debt, the payment of the debt did not reinvest the title in Garringer, but Garringer had an equitable interest which he could direct Young to convey to him or to some one else, and the deed to- his wife Nancy conveyed the legal title to her; and if made to her by William’s direction, or with his knowledge and consent, which is equivalent to. direction, and nothing further appears, she took the absolute title, and did not hold it in trust for him.
    3. -: Deed to Wife: Resulting Trust. Where a deed absolute on its face is made as security for the payment of a debt due from the owner to the grantee, and, when the debt is paid, the grantee conveys to the grantor’s wife, at his direction, or with his knowledge and consent, which is equivalent to direction, and nothing further appears, no resulting trust arises in bis favor, for in sucli case the conveyance is a gift or sale to the wife; and if it was made to her for the purpose of avoiding the payment of his debts he and his heirs are without remedy.
    Appeal from Greene Circuit Court. — Hon. Guy D. Kirby, Judge.
    Affirmed.

      Arch L. Sims and John L. McNatt for appellants.
    (1) Parole evidence to vary, change, or explain the provisions of a deed is inadmissible. This is so even where there is such provision contained in a written contract, as the terms of the deed must determine the intent of the parties and the estate conveyed. Davidson v. Mauson, 146 Mo. 608. (2) Declarations of intention or of explanation of a grantor to a deed, either before or after its execution is inadmissible for any purpose. Kenny v. Muning, 170 Mo. 706; Collins v. Harrell, 219 Mo. 306. (3) A deed of land, absolute in form but intended by the parties merely as security for a debt being in legal effect a mortgage, a conveyance executed by the grantee therein to a third person who has notice of the defeasible nature of the original deed, operates as an assignment of the mortgage and of the debt secured and nothing more. 27 Cyc. 1293. (4) A person accepting a deed and claiming title through same is estopped to dispute the truthfulness of any of the recitals of said deed. Fox v. Windis, 127 Mo, 502; Hannibal, etc. v. Green, 68 Mo. 169'; King v.' Union. Trust Co., 226 Mo. 351; Tyler v. Hall, 106 Mo. 313; Dickerson v. Anderson, 9 Mo. 156; Clamorgan v. Green, 32 Mo. 285; Patton v. Forgery, 171 Mo. App. 1; Curry v. Lafon, 133 Mo. App. 176; Durrette v. Briggs, 47 Mo. 356. (a) This principle of estoppel applies not only as to the parties to the deed but also to privies by inheritance or by deed. Hasmith v. Kerchoffer, 79 Mo. 241. (b) And such estoppels may be raised although
      not pleaded in a reply. Brehan Bank v. Branch, 104 Mo. 425. (5) The defendants claiming under said quitclaim deed cannot dispute that the warranty deed was a mortgage. The court found same to he a mortgage. Neither can the defendants dispute that the debt secured by said mortgage had been paid, for same was so recited in said quitclaim deed. The payment of a mortgaged debt, ipso facto, relinquishes the interest the mortgagee has in said property. Gibbs v. Haughout, 207 Mo. 888; McNair v. Picotte, 33 Mo, 57; Collins v. Stocking, 98 Mo. 295; Bray v. Conrad, 101 Mo. 331. (6) A person conveying property in fraud of creditors, and all those claiming under him through said conveyainee, mil not be permitted in a court of law or equity to introduce such evidence of fraud. Over v. Howard, 11 Mo. 425; Thomas v. Thomas, 107 Mo. 464; Davidson v. Dockery, 179 Mo. 696. (7) The Statute of Limitations has no application in this case. Herndon v. Yates, 194 S. W. 46.

      Katherine Halterman and William B. Skinner for respondents.
    (1) A fraudulent conveyance is valid between the parties thereto, and as a general rule is only voidable as to creditors who by timely and proper proceedings acquire- some specific lien on the property conveyed, prior to a tona-fide purchase thereof by a third party for value and without notice. Jacobs v. Smith, 89 Mo. 673. (2) A transfer of property made in fraud of creditors, while void as to them, is binding upon the parties thereto and those in privity with them. Whitaker v. Whitaker, 157 Mo. 353; Davidson v. Dockery,-179 Mo. 696. (3) Both parties must intend that a deed absolute on its face shall be treated as a mortgage to make it such. Duell v. Leslie, 207 Mo. 667. (4) A mortgagor (grantor) who abandons his right to redeem from an absolute conveyance and who elects to treat the conveyance as an absolute deed instead of a mortgage is bound by such election and cannot afterwards redeem. He may also verbally waive Ms right of redemption in favor of another person and after a long acquiescence in the transaction, the other in the meantime having redeemed the land and improved it, he will not be allowed to redeem from him. In any event redemption must be made within the time allowed by the statute of limitations. 1 Jones on Mortgages (7 Ed.), par. 338; Tiedeman on Real Property (3 Ed.), par. 235; Scanlan v. Seanlan, 134 111. 630; Hutchinson v. Pag’e, 246 111. 71; Adams v. Cooty, 60 Vt. 395; Deadman v. Yantis, 230 111. 243; McMillian v. Jewell, 85 Ala. 476; Cramer v. Wilson, 202 111. 83; Wamsley v. Crook, 3'Nebr. 344; Vennum v. Babcock, 13 Iowa, 194; Yaule v. Richards, 1 N. J. Eq. 534, 23 Am. Dec. 722; Shaw v. Walbridge, 33 Ohio St. 1; Woodworth v. Carmen, 43 Iowa, 504; West-fall v. Babcock, 16 Hun. (N. Y.) 541; Trull v. Skinner, 34 Mass: 215. (5) Where a deed is absolute in form and the equities of the grantor to have it held for security lie only in parol, the equities may be discharged by a subsequent parol agreement, which leaves the title absolute in accordance with the terms of the deed. Sevis v. Gilman, 199 Mass. 384; Scholl v. Hopper, 134 Ky. 83. (6) The activity of equity powers cannot be invoked where a party has negligently slept upon Ms rights and induced others to act upon the confident belief that he has abandoned them. Schradski v. Albright, 93 Mo. 42; Bobb v. Wolf, 148 Mo. 335. As between the original parties a recital in a deed, unnecessary to the conveyance, will not operate as an estoppel. Osborn v. Osborn, 6 Cal. 149; Devlin on Real Estate, paragraph 995.
   BROWN, C.

The two actions entitled as above were brought to the May term, 1917, of the Lawrence County Circuit Court, by petition founded upon Section 2535, Revised Statutes 1909, to determine the title to about one hundred and twenty acres of land in that county. They were removed by change of venue to Greene County,' where they were tried together as one case upon the same evidence, involving the same issues. The judgment of the trial court was for the defendants. The plaintiffs appealed and both appeals are consolidated for hearing in this court. '

The plaintiffs are children and heirs of William Garringer, claiming by inheritance from him'. The defendants, claiming adversely to plaintiffs, rely upon a title derived through Nancy C. Garringer. The only issue in the case is whether, at the time of the death of William Garringer in 1901, Nancy C. Garringer, his wife, was already seized of the premises in her own right.

The common source of title is William Garringer, who owned the land and occupied it as a homestead for himself and family, consisting of his wife and their children. On August 15, 1874, he conveyed it by warranty deed to Henry C. Young for, a recited consideration of $1,500,* his wife Nancy joining in the deed. At that time he was very much concerned about his liability as surety on a note to the county for the benefit of the school fund, on which suit had been or was about to be instituted and on which a judgment was subsequently recovered. Young made a lease of the same land to Gar-ringer without date, but expiring on September 3, 1876, for the consideration of $100 payable on that date, and signed by both parties.

On March 7, 1878, Young executed a quitclaim deed whereby he remised, released and quit-claimed the same land to Nancy C. Garringer. Following the description are the following words: “The land was conveyed to me the 15th. day of August, 1874, to secure attorneys ’ fees due myself and John G, Wear, and William Gar-ringer has paid said Wear the fees. The deed is absolute on its face, was intended between the parties as a mortgage.” This deed was filed for record November 30, 1883. .

There was testimony strongly tending to show that Mr. Garringer at the time of these transactions stated that he had pat this property oat of his hands for the purpose of protecting it against the surety debt.

Mrs. Carringer continued to occupy the land as her homestead after her husband’s death until her own death in 1937. Under the stipulation for the consolidation of these cases the findings and judgment of the court are copied in the appellants’ abstract of the record in namber 20,895, which involves the title adjudged to be in Moore. It is agreed, however, that Namber 20897, in which the title was adjudged to Dennie Gar-ringer, involves precisely the same questions. The judgment and findings in the Moore case are as follows:

“The court finds that William Carringer, Sr., through whom plaintiffs and certain defendants claim title by inheritance, at the time of his death had no title to the real estate described in plaintiffs ’ petition, to-wit: The Soathwest Qaarter of the Soathwest Qaarter of Section Eleven, Township Twenty-eight, Range Twenty-six, in Lawrence Coanty, Missouri, except two acres in form of a’ square in the southeast corner thereof. The court finds that on the 15th day of August, 1874, the said William Carringer and his wife, Nancy C. Carringer, by their deed recorded in Book R, page 5, and Book 106, page 594, in the Recorder’s office in Lawrence Coanty, Missoari, conveyed the above described real estate to Henry C. Yoang, to secure attorney’s fees duo to said Yoang and one John C. Wear, and that thereafter the said Henry C. Yoang, to-wit, March 7th A. D. 1878, by his deed recorded in Book Y. page 523, in the Recorder’s office in Lawrence Coanty, Missoari, and at the instance and request of said William Carringer, Sr., conveyed the said land to Nancy C. Carringer, and she became vested with the title thereto; the court farther finds that the wife of Henry C. Yoang, who failed to join with him in said deed, was dead at the commencement of this action, and the court farther finds that after the death of William Carringer, Sr., the said Nancy C. Carringer by her deed conveyed said land to Frank Garringer, who thereafter conveyéd the same to Fred Moore, who thereafter conveyed the same to John G. Ruckert, who in turn conveyed the same to the defendant, R. N. Moore, as pleaded and set out in the separate answer herein of said defendant, R. JST. Moore. It is therefore considered, ascertained, determined and adjudged by the court that the defendant, R. N. Moore, is the owner in fee of, in and to the said Southwest Quarter of the Southwest Quarter of Section Eleven, Township' Twenty-eight, Range Twenty-six, except two acres in form of a square in the southeast corner thereof, and that neither of the plaintiffs, nor the other defendants, nor any of them, have any right or title thereto, and that the defendant R. N. Moore, have and recover of and from the plaintiffs his costs in this behalf laid out and expended. ”

I. This title depends entirely upon the effect of the following recital in the quitclaim deed of Henry C. Young to Nancy C. Garringer: “This land was conveyed to me the 15th day of August, 1874, to secure attorneys’ fees due myself.and John G. Wear, and William Garringer has paid said Wear ^ feeg> The (jeed absolute on its face, was intended between the parties as a mortgage.” All courses of reasoning by which we may follow the transaction in which the land was, in 1874, conveyed by William Garringer, the common source, to Henry C. Young, lead unerringly to this point. It was transferred to Young; by warranty deed with all the usual covenants of title and seizin, and would still remain with him, but for the quitclaim deed which is the parting of the ways, one of which leads to the reinvestiture of the grantor, as plaintiffs contend, and the other to the vesting of the title in Nancy C. Garringer, under whom the respective defendants claim.

Much has been said in argument to the effect that the evidence shows that the warranty deed to Young, was made in pursuance of a plan of the grantor to defraud the school fund of which he was a debtor, and that neither he nor his heirs can take advantage of this ulterior purpose to defeat the operation of the deed according to its terms. While that is true, it is also true that the plaintiffs are relying on the very deed from Young through which the defendants deraign their title This brings us back to the question whether the quitclaim deed is a release inuring to William, or a conveyance to Nancy. But while the fraud is not available to the plaintiffs to annul the transaction, it may throw light on the meaning of the subsequent acts of the parties. Thiip is not inconsistent with the finding' of the court that a purpose of the deed was to secure an attorneys’ fee due from Garringer to Young and Wear, as recited in the deed under which the defendants claim. That, eliminating this recital, that deed is sufficient to invest the grantee with the legal title conveyed to Young-in 1874, is not questioned.

II. The rule is that the satisfaction of a mortgage reinvests the mortgagor with his original title. This is not the case where the deed, although made as security for a debt, is absolute on its face, containing no defeasance. In such case the grantee, instead of holding- a mere security, holds the legal title to the land, and the record of his deed is notice to all the Avorld of absolute ownership. It requires no further assurance to complete his title. The interest of the grantor is only an equity, enforcible as such notAvithstanding the statute requiring conveyances of such interests to be in writing. If the grantor holds a written defeasance, its mere surrender, for that purpose, releases the land from the equitable incumbrance. [Jones on Mortgages (7 Ed.), sec. 338; Trull v. Skinner, 34 Mass. l. c. 215; Vennum v. Babcock, 13 Iowa, 194.] So in all cases where the right to redeem rests simply in parol it may be Avaived by words or acts clearly indicating that purpose on the part of the grantor, in the absence of any circumstance of unfairness or oppression on the part of the grantee. [Hutchison v. Page, 246. Ill. 71; Cramer v. Wilson, 202 Ill. 83; Deadman v. Yantis, 230 Ill. 243; Scanlan v. Scanlan, 134 Ill. 630; Shaw v. Walbridge, 33 Ohio, 1; Wamsley v. Crook, 3 Neb. 344.]

In this case, Yonng,-having an absolute title to the land by virtue of his warranty deed from William Gar-'ringer, executed the quitclaim deed to Mrs. Garringer. But for the recital to which we have referred this was sufficient to revest the title in her. The plaintiffs deny that it had this effect, because that deed shows, upon its face, that the deed under which Young held was in fact a mortgage shown by recital in his quitclaim deed to have been satisfied; that its satisfaction extinguished the title of Young, which reverted to his grantor under whom the plaintiffs claim by inheritance and that Yonng and his grantee, as well as the defendants claiming under them, are bound by this recital, which constitutes a part of defendants’ title and estops them from claiming through the deed to Young.

This legal proposition is true in the class of cases to which it is applicable; that is to say, of conveyances purporting upon their face to be made as security, and containing a defeasance which' divests the legal title conveyed upon the performance of the condition to which it is subject. No reconveyance is necessary, because the legal title reverts to the grantor by the terms of the instrument which conveyed it. In practice .no one can be deceived by its operation.

There is no foundation for such rule in this case. The Statute of Frauds, out of consideration for the stability of titles, requires the transfer of interests in lands to be in writing, but has made an exception to this rule in case of resulting trusts which are cognizable only in equity, which is, in this State at least, notwithstanding the code, a separate jurisdiction for the enforcement of equitable rights as distinguished from legal titles.

The courts of this country, where not prohibited by statute, have applied the principles relating to resulting trusts to conveyances of this character, by permitting it to be shown that a deed absolute on its face was made as security for a debt. This right is purely equitable, recognized and enforcible in courts having equitable jurisdiction. The title of the grantee in such a case is perfect at law. [Jones on Mortgages (7 Ed.), sec. 282.] Its establishment as against the legal title requires the same certainty of proof applicable to other cases of that .character. In such cases the grantor must come into the court of equity with clean hands and he and those in privity with him, as his heirs, will be denied relief, even in cases where the conveyance was made to secure an honest debt, if an ulterior object of putting the security in that form was to defraud other creditors. [Id. sec. 283.]

The rule of privity which charges innocent heirs with the fraud of their ancestor by refusing them relief in such cases, does not apply to the widow. Her inchoate interest in the lands of her husband attaches by virtue of the marriage relation during his lifetime, .ripening to a possessory interest upon his death, and equity will grant her the same measure of protection as if she were a stranger. [Kitts v. Wilson, 130 Ind. 492.]

With these well settled principles in mind we will examine the quitclaim deed of Young to Mrs. Garringer, which is admitted to be in all respects sufficient to invest her with all the title Young had or might convey. It recites a paid consideration of $200 to Young. How this was paid by Mrs. Garringer is not stated and does not appear. The troublesome recital states that the warranty deed under which Young claimed was made to secure the payment of fees to himself and Wear, and that the fees had been paid to Wear by Garringer, his grantor. A fair construction of these two recitals seems to be that, while the warranty deed was made to secure attorneys’ fees both to himself and to Wear, the fees due the latter had been already paid by Garringer, and that the $200 was the amount of fees due to himself. This is much more reasonable, as well as more creditable to Mr. Young, than the theory that, having received full payment of the amount of the debts, he was still exacting $200 for doing what equity- required him to do without compensation. However this may be, the entire sum was paid, and, if the title of Young was a mere security, he still held the legal title which equity required him- to return to Garringer or to another at the latter’s direction. Had he refused a court of equity would hav'e accomplished it for him. Had Garringer sold or transferred his equity the transferee would have been entitled to the conveyance. Had he borrowed the money to pay his debt he might have had the same security transferred by Young to the lender. Instead of doing any of these things he transferred his legal title to one of his grantors, who had the right, in equity,' to demand it.

The fact that the payment of the debt was prerequisite to the duty of Young to reconvey demonstrates the fallacy of the contention that its recital in the quitclaim deed destroys the effect of that instrument. The unquestioned right of Garringer to transfer his equity in the lands demonstrates the right of the holder of the legal title to convey it as he should direct. The transfer might be effected by sale or gift according to the pleasure of the owner, and his heirs would be bound by the disposition. That the legal title passed to Mrs. Gar-ringer by the Young deed without regard to the manner in which the consideration was recited is equally evident.

III. The legal title having been vested in Mrs. Gar-ringer when she made, the conveyances under which the 'defendants Moore and Dennie Garringer claim, the only question is whether she held it in trust for her husband. If it was conveyed to her by his direction, or with his knowledge and consent, which is equivalent to such direction, and nothing further appears, then no trust resulted to him from the act. In such case it would be a gift or. sale as the case might be. We think that his reason for causing this deed to be made to 'his wife instead of to himself appears plainly in the testimony. It was the same reason that induced him to make the warranty deed to Young for the fictitious consideration recited in the instrument, but really to secure the payment of an attorneys’ fee. He desired in that way to prevent the sacrifice of the property by sale in satisfaction .of the debt for which he was surety. Nothing was more natural than that he should grow fearful that this repository of the title might become unsafe by death or other contingency, and that he should select his wife to take the place of his friend and attorney. In such case, as we have seen, he and his heirs would be without remedy.

That he knew of the conveyance is certain, for he permitted twenty-three years to elapse between its execution and his death without any indication of dissatisfaction with the situation. During eighteen years of this time the deed had been spread upon the land records of the county. The theory that during all this time he had rested serenely in the belief that his friend Young was the owner of his farm is too grotesque for consideration. At the time of his death the Statute of Limitations had run against any claim he might make with respect to the title, and the record shows that the defendant claimants are still in possession under the same old deed. Under these circumstances we can see no error in the finding of the court that the deed from Young to Mrs.. Garringer had been made by direction of William Gar-ringer.

It follows that the judgment of the Circuit Court for Greene County should be and it is affirmed.

Ragland and Small, GG., not sitting.

PER CURIAM:

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

All of the judges concur, except Woodson, J., absent.


source: Caselaw Access Project

author: SMALL, C PER CURIAM:

license: Public Domain

text:
    LAVINIA BAILEY, By Guardian, Appellant, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY and BENJAMIN BLACKLEDGE.
    Division One,
    October 11, 1920.
    1. NEGLIGENCE: Pedestrian on Railroad Trestle: Demurrer. The trestle south of a bridge was*272 feet long; it consisted, in part, of parallel rows of wooden piles, fourteen feet apart, on the tops of which were timbers thirteen inches square, called “caps;” on the caps, parallel with the track, were stringers sixteen inches high, and across them Were the ties, and near the end of the ties, guards, six inches high and eight inches wide, were laid, and between them were the rails; the caps extended two feet, on each side, beyond .the ends of the ties, and the ends of the caps extended two feet and ten inches beyond the end of the pilot-beam, which was five feet and one inch above the caps, so that it was possible to stand on the end of the cap, and by stooping down, avoid being struck by the pilot-beam. Deceased was walking south on the trestle, and the engineer of a southbound train, running at a speed of thirty-five miles an hour, saw him when he was a quarter of a mile north of him, and immediately sounded the whistle, two long and two short blasts, and the bell rang automatically; deceased turned to the right, then to the left, stepped over the rail, taking four or five steps in all, and then got down on his knees, when the engineer lost sight of him; the speed on the train had not been slackened, and when the engineer lost sight of deceased he was about 200 feet away, and at that time th'e fireman shouted to the engineer to stop, and he immediately shut off steam and applied the air and the emergency brake, and the train stopped within 350 feet; deceased was facing south, and the pilot-beam struck him on the hip, and knocked him to the east side of the trestle and into the water below. After the whistle sounded, deceased looked back towards the engine, stepped beyond the end of the ties, and then stooped down as if he were going to get out on to the cap; and the engineer testified that he had frequently seen pedestrians on the trestle, and that they always stepped down onto the ends of the caps, and avoided injury, and he supposed from deceased’s action that he was doing the. same. Held, that deceased had at most only a narrow chance for his life after his peril was discovered, and the case was one for the jury, to determine whether the engineer was guilty of negligence in not checking the train after he discovered deceased’s peril, notwithstanding his contributory negligence.
    2. -: -: Discovery: Presumption of Prudent Action. The engineer of a rapidly-moving railroad train when he discovers a pedestrian on a trestle in such perilous situation that he cannot extricate himself before the train reaches him, has no right to presume that he will get off the track when he hears the whistle or other warning. When the pedestrian’s only chance to save his life, after he sees the approaching train or hears the warning, is , to quickly step down from a trestle to a perilous position ht the end of a narrow “cap” on top of the wooden piles, the engineer cannot presume that he will safely reach that small place of safety before the rapid train strikes him.
    3. -: -: -: -: Safe Escape of Other Pedestrians. The fact that the engineer has frequently observed other pedestrians with sufficient agility of body and presence of mind to save themselves by quickly getting down from the track and standing on the narrow space at the end of the “caps” on top of the parallel rows of piles, will not justify him in assuming that an ordinary man will always do likewise.
    4. -: -: Perilous Position. A high trestle, 272 feet long, with a river in flood rusliing under it, is a place of peril to a pedestrian thereon from the time the engineer of a rapidly-moving train sees him, especially where there is no place of safety except upon the perilous ends of the “caps,” and is such a position as to produce terror and to temporarily deprive ordinary persons of prudent self-eontro; and where the evidence tends to show that even this narrow place of safety on the end of the cap the pedestrian did not have time to reach after the whistle was blown, that the engineer could have stopped the train several times after he saw him on the trestle before striking him, and that no effort was made to stop the fast train until the engine was within 150 to 200 feet from him, the jury has a right to infer negligence on .the part of the engineer.
    Appeal from Macon Circuit Court. — Hon. V. L. 'Drain, Judge.
    Reversed and remanded.

      A. D. Morris, E. O. Jones and Fogle & Fogle for appellant.
    (1) The plaintiff proceeded properly and had a good' cause of action under the humanitarian doctrine. Starks v. Lusk, 194 Mo. App. 250; Adams v. Railroad, 74 Mo. 553; Morgan v. Railroad, 159 Mo. 275; Reyborn v. Railroad, 187 Mo. 574; Murphy v. Railroad, 228 Mo... 79; Dutcher v. Railroad, 241 Mo. 137; Poster v. West, 194 Mo. App. 94; Pope v. Railroad, 242 Mo. 240; Palmer v. Railroad, 142 Mo. App. 458. (2) That the ■deceased may have seen the train coming toward him will not defeat the plaintiff, because deceased could not have moved to a place of safety. Palmer v. Railroad, 142 Mo. App. 458; Pope v. Railroad, 242 Mo. 240; Adams v. Railroad, 74 Mo. 553; Reardon v. Railroad, 114 Mo. 405; Woodis v. U. R. Co., 203 S- W. 489; Armstrong v. /Railroad, 195 Mo. App. 83. (3) Dee,eased was in peril necessarily, while on the trestle, wherever he was and whatever he was doing.' Starks v. Lusk, 194 Mo. App. 250. (4) The engineer owes the duty, not only of using the utmost care after he knows injury is imminent, but must use ordinary care to anticipate injury before it becomes imminent. Poster v. West, 194 Mo. App. 101. (5) It was not necessary that the defendant should actually know of the danger to which the deceased was exposed. It is enough, if having sufficient notice to put a prudent man on the alert, he does not take such precaution as a-prudent man would take under similar notice. Kloekenbrink v. Railroad, 172 Mo. 687, 81 Mo. App. 351. (6) If defendant, after discovering the peril of deceased, could not have stopped the train, but could have saved deceased by slowing down, and failed to do so, then defendant is liable. Maginnis v. Railroad; 182 Mo. App. 694. (7) In determining whether the cause should have been submitted to the jury, all evidence and inferences unfavorable to appellant must be disregarded, and all evidence and all reasonable inferences favorable to him must be taken into considera- • tion. This rule is not affected by the fact that the witnesses were all called by appellant. While he could not impeach one of his own witnesses, he was at liberty to prove the facts to be otherwise Than as such witness testified. Prankel v. Hudson, 271 Mo. 503; Schumacher v. Breweries Co., 247 Mo. 154, 155. (8) Where the evidence is conflicting, the issues must he submitted to the jury. ■ Sinamon v. Moore, 161 Mo. App. 168; Bothe v. Railroad, 181 Mo. App. 720.

      H. J. Nelson, Ben Franklin, Campbell & Ellison and J. G. Trimble for respondents.
    (1) While appellant has cited a great many cases, there is none that is in point in this case. They are all cases where the deceased, or the party injured, was in plain view of the engineer (or would have been had the engineer been watching), who could see they were unconscious of the approach of the train or unable to get out of its way. (2) The only question presented by the appellant is: Was the engineer justified in believing the deceased intended to get down to the cap? (3) Under the circumstances, the engineer was under no obligation to make any effort to stop his train until he saw the deceased had changed his mind.and instead of getting down to the cap, intended to squat or kneel on the ties. Yeatch v. Railroad, 145 Mo. App. 232; G-umm v. Railroad, 141 Mo. App. 306; Schupp v. Railroad, 166 Mo. App. 597; Pope v. Railroad, 242 Mo. 232. (4) Appellant’s two trestle cases, Starks v. Lusk and Adams v. Railroad, are not similar to the case at bar. The cases of Veatch v. Railroad, and Pope v. Railroad, announce the doctrine applicable to this case. (5) In the present case there was an “Isle of Safety” known to the engineer and known to the deceased. Unlike the deceased in the Pope case, he deceased in this case started to the “Isle of Safety,” but changed his mind too late for the engineer to stop the train and avoid striking him.
   SMALL, C

Plaintiff’s husband on May 6, 1917, was killed or drowned by, being knocked off of a trestle connected with defendant’s bridge over the Chariton River in Schuyler County. Defendant Benjamin Black-ledge was the engineer in charge of the train. The track (for some distance), bridge and trestle ran north and south. The bridge proper is 139 feet and 6 inches long. The trestle on the north side of the bridge is 41 feet and 6 inches long, and on the south side 272 feet and 10 inches long. So that the bridge and trestle-work altogether measured 453 feet and 10 inches. The railroad track extends straight north from the trestle about 1071 feet. North of that the track curves, but a man on the bridge could be seen by one standing on the track on the curve 1662 feet away. The trestle-work was built on wooden piles driven into the ground. On these piles, which were in parallel rows about 14 feet apart, there was a heavy piece of timber 13 by 13 inches square, called the 1 ‘ cap. ’ ’ Stringers were laid parallel with the track on top of these caps. These stringers were 8 inches wide by 16 inches high. On top of and across the stringers, the ties, which were 8 by 8 inches square, were laid. Near the end of the ties was a wooden guardrail 6 inches high and 8 inches wide. The track was laid between these guardrails. The caps on the piles extended about 2 feet beyond the ends of the ties, and the ties about 10 inches beyond the pilot-beam of an engine. The end of the caps was about 2 feet and 10 inches beyond the end of the pilot-beam, which was 5 feet and 1 inch above the top of the caps. So that it was possible to stand on this cap, by stooping down, and avoid being struck by the passing engine. At the time in question, the river was out of its banks and flowing under the trestle-work. It was broad daylight. The train was going south; so was Bailey,'the deceased.

The engineer testified that the train was running 35 miles an hour, possibly a little faster, as they were late, and he was trying to make up time. That he was about a quarter of a mile north of the bridge when he discovered Bailey on the trestle-work south of the bridge. He then gave the regulation crossing whistle, 2 long and 2 short blasts; "the bell was ringing automatically. He did not sound the whistle any more, but continued down the track at the same rate of speed. After the whistle was sounded, Bailey turned to the right, then went a few steps further, and then turned to the left, and stepped over the rails on the ends of the ties on the left hand side of the track, and turned again and looked. He then got down as far as his knees, when the engineer lost sight of him. As the engineer lost sight of him, he was 200 feet away and between. 100 andvlSO feet south of the bridge proper on the trestle. At the same time, the fireman “hallooed” to' the engineer to stop. The engineer immediately shut off the steam and applied the air and the emergency brake. The train then stopped, so that the rear end of it, when it stopped, was at the point where Bailey was knocked off of the trestle into the water. .The train, including the engine, was about 180 or 200 feet long.

The engineer testified that the train could have been stopped, at the rate of speed he was going, within 350 feet. He further said, that he was watching the man all the time except possibly when his attention had to be given to something else, but his attention was not taken away from the man any length of time. That he crossed the river, with trains 32 times every day. That it was a frequent occurrence for men to use the bridge to cross that river. That on numerous occasions, when he had seen -men walking on the bridge, as he approached, they simply went over to the end of the ties, and stepped on the caps, if they were on the trestle, and he passed them in perfect safety. ■ That he had done that all of the 15 years he had been running there. It was a very common occurrence. On this occasion, deceased stepped on the end of the ties and got down on his knees, the same as others had done, to step down on the cap to let him go bv. There was no difference in this man’s movements and actions from that of other people who had got down on the caps, as he thought deceased was going to do. The next day, at the same place, there were a number of people gathered and some of them stepped down on the caps of the trestle to let him go by. When he first saw deceased, the latter was walking on the track; he could not tell whether he was an old man or ' a young man. He was walking in just the ordinary way, when he first saw him, and during all of the time he did see him. After he discovered, or was informed, that Bailey was in peril, or was not getting down on the cap, as he believed he was in the act of doing, there was nothing that could have been done, that he did not do, in order t*o avoid striking him.

The fireman also testified that he saw Bailey, when they were about a quarter of a mile away north of the bridge. That he watched him practically all of the time.. That the engineer first commenced to diminish his speed within 150 or 200 feet of Bailey. The pilot-beam struck him ‘on the hip. He was facing south, and it knocked him to the east side of the trestle and into the water. When the train stopped, the fireman went back, crawled part of the way on the guard-rail, and he saw Bailey float through under the trestle and sink out of sight in the water. He also testified that after the whistle sounded, Bailey turned around and looked back toward the engine, and stepped out from the middle of the track on the trestle, onto the ties outside of the rails, and then looked back again. Bailey got down, stepped or squatted down, as if were going to get out onto the cap. When within 150 feet of him, he saw that Bailey was not making the effort he should, and he . “hallooed” at the engineer to stop, that he was going to strike somebody. Whereupon, the engineer immediately shut off the steam, and applied the emergency, and made, what he considered, a good stop. Deceased took four or five steps, not to exceed five, after the whistle was sounded, until the fireman saw him trying to get down on his knees. When the engine struck him, he was down on his knees, and had both hands on the guardrail. He was just over a cap as near as he could get.

Other witnesses for plaintiff testified: That Bailey was about sixty-five years of age, and hard of hearing. He lived about a mile south and a little east of the bridge. One witness said Bailey could scarcely hear anything.

There was also evidence that a man on the track,' north of the bridge, where the carve commences about 1000 feet away, could not tell whether men standing on the south end of the bridge, turned and looked around or not.

The defendants introduced no testimon}7, except that of one witness, who testified that he stepped down On the cap to let the train pass, on the day following the accident.

At the close of all the testimony the court sustained a demurrer to the evidence, asked by the defendants. New trial being refused, plaintiff appealed.

I. We think there was a case for the jury. It is strenuously argqed, however, on behalf of defendants, that the engineer had a right to suppose that the deceased would leave the track and get into a place of safety, because, after the whistle sounded a quarter of a mile away, the deceased apparently looked back towards the engine, left the center of the track, on the trestle, where he had been walking, and got over on the ends of the ties. But it appears that the train was behind time and going 35 miles or more an hour, and never slackened its speed until within about 150 or 200 feet of the deceased, when the fireman told the engineer to stop, that he was going to run over somebody. It is true, the engineer testified that he had frequently seen men on this bridge ahead of him, and that they always, theretofore, had stepped down onto the end of the caps, arid he had passed them in safety and that from deceased’s actions, he was apparently dping, or was going‘to do, the’ same thing. But when he observed him so doing, actually kneeling down, as the engineer supposed, for the purpose of getting oil the cap, it was too late to stop the train to save him. It was broad daylight, and both the engineer and the fireman testify, that they were watching the deceased from .the time they first saw him a quarter of a mile away, until he was killed.

We hold that the deceased was in peril at the time the engineer first saw him on the trestle, just across the bridge. His margin of safety was very slight indeed. The engineer should have had his train under control from the time he first saw the deceased on this trestle. The engineer knew he had no time to get off of the trestle and that the only chance he had for his life was to get down and stand upon this narrow and perilous place on the end of one of the caps. The fireman testified that the deceased only took three, four or five steps, not to exceed five, after the whistle sounded, and the whistle was sounded when they first saw him. The engineer says that the deceased seemed to walk in the ordinary way, when he took these steps. Going at the rate of speed this train was, unless its speed was checked, after the engineer sounded the whistle, the deceased would be overtaken by the train before he had time to find and step down to the perilous position on the cap. There was, at least, evidence upon which the .jury could so find. .

There is a wide difference between this case and the usual ease, where the engineer sees a man some distance ahead of him on 'the track, on the ordinary right of way of the railroad company. In such cases, the engineer has a right to presume the man will get off of the track safely,, when he hears the whistle, because he has time and opportunity to do so, which did not exist in the instant case, where the deceased was on this dangerous trestle with no place of safety which he could reach in time to save his life.

In Pope v. Railroad, 242 Mo. l. c. 239, we said:

“In the case of Kinlen v. Railroad, 216 Mo. l. c. 164, this court said: ‘ The humanitarian doctrine only applies and authorizes a recovery where the injured party is ignorant or oblivious to the impending danger; but if lie knew of the approaching danger, then clearly he would be guilty of such contributory negligence as would prevent a recovery, whatever the conduct of the agents in charge of the train might be.’ The foregoing language must be understood as applying to a case in which a person is upon the track at a place where he could safely have gotten off and'out of danger when conscious of the train’s approach.”

The mere fact that the engineer, theretofore, had encountered persons on this or other trestles with agility and presence of mind enough to save themselves by getting down and standing in this narrow space upon the end of the,caps, did-not justify the engineer in believing that an ordinary man would or could always do this. It seems to us, that but very few ordinary men would have much chance of escape under such circumstances as surrounded the deceased In this case, unless the train slowed down or indeed was stopped entirely. This was, at least, for the jury to pass upon.

In Adams v. Railroad, 74 Mo. 553, the deceased, a man fifty or sixty years of age, in company with his three sons, was walking on the railroad track. He saw the train coming a half mile away before he went upon a long trestle west of Chillicothe. After getting on the trestle, the oldest son, who was fourteen years old, told him he had better come back, but the deceased said he thought he could cross the trestle and get away. They had proceeded about one-third of the way across the trestle, when the oldest boy turned back and got off. The father and the younger sons went forward, and when about half way over the trestle, they sat down on the ends' of the ties, when the father raised up, after the engine and three or four cars passed without injuring them. In raising up the father was struck, knocked off and received injuries which caused his death. This court, Judge Henry delivering the opinion, says, at page 555: “The negligence of the deceased was such as to preclude a recovery unless the servants of the defendant running the train saw the danger to which he had exposed himself in time to have stopped the train and avert the calamity. It is no defense to the action that he was guilty of negligence in going on the trestle, no matter how gross, if the servants of the company saw him on the trestle, and after discovering him there, could have stopped the train and thus have avoided injuring him. His negligence then ceases to he a matter for consideration.” On page 560, Judge Henry continued: “The position of appellant’s counsel, that the carelessness of the deceased, in rising up, after four or five cars, but before the entire train had passed, precludes a recovery, even conceding that, but for such carelessness, defendant yould be liable, if they saw him on the trestle, and by proper care could have stopped the train, and thus avoided injuring him, is untenable. One in so perilous a position is not to be held to the exercise of the same care and prudence as if he were in a place of security. The terror, temporarily depriving the deceased of the proper use of his faculties, was produced by the recklessness of defendant’s servants, managing the train, if they saw him and could have stopped the train, after they discovered him on the trestle, before it reached him.”

Thus, this court has decided that a trestle, although it is possible to sit down on the end of the ties, which, in this case was not possible, and avoid being struck by an onrushing train, is not a “place of security,” but a “perilous position,’’ which may even produce such terror as to temporarily deprive persons of the proper use of their faculties. To this we agree.

So, recently we have had occasion to consider this same subject. In Starks v. Lusk, 194 Mo. App. 250, the plaintiff’s husband was killed by reason of a freight train running over him, while backing over a trestle. As to every place being a place of peril on a trestle, the opinion of the majority of the appellate court, at page 258, used this language: “This was an open trestle with nothing whatever to prevent the seeing of a man, or any object, at a considerable distance whether he be walking, standing, sitting or lying down. "What is more important here is that deceased ^as necessarily In peril from the time the train entered on the trestle until it struck him, whether he was walking standing, sitting or lying down and regardless of what part of the trestle he was on. He could have come onto the trestle nowhere but at the north end and, wherever he was between those points, and whatever doing, he was in peril. Fie was killed about 280 feet from where he entered into the place of peril and while the train was going that distance, at least, the deceased was seeable and was in á position of danger whatever he was - doing' or wherever he was. The train could have been stopped in much less distance. The place where this deceased was killed was not like the open road bed in the Hamilton and Whitesides cases, where only a step or two in space and a moment of time separated the place of safety from the place of danger. ’ ’ The case being certified to this court by the dissenting judge, the' opinion of the majority was adopted by this court (216 S. W. 1119.). But even the dissenting judge designated every part of a trestle as a place of peril, saying (194 Mo. App. l. c. 263): “If Starks did walk on the trestle to the point of collision, then I agree with the opinion heretofore rendered, that he was at all times in peril where it was the duty of the defendant to see and save him.’-’

We hold, that in the case before us, the deceased was in imminent danger at all times, while on the trestle after the engineer first saw him, with no place of refuge, except this perilous position on the end of a cap. And even this perilous position, the evidence tends strongly to show, he had not time to reach, after the whistle was blown. But the engineer could have stopped the train several times, according to his own evidence, after he saw the deceased on the trestle before he ■ struck him. The jury had a right, therefore, to infer from the evi-1 dence that the engineer, was guilty of negligence in speed-' ing the belated train with unabated velocity, so that it overtook' deceased before he could take more than four or five steps towards the perilous place on the end of the cap. There was ample evidence from which the jury might infer negligence, on the -part of the engineer, in making no effort to stop or decrease the speed of the train, until -within 150 or 200 feet of the deceased, when it was too late.

There was a case for the jury under the humanitarian dcct'rine. The judgment of the lower court should be reversed, and the cause remanded to be proceeded with in accordance with the views herein expressed.

It is so ordered.

Brown and Ragland, (7(7.,. concur.

PER CURIAM:

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

All of the judges concur except Woodson J'., absent.


author: WILLIAMSON, J.

text:
    THE STATE ex rel. E. W. MANION et al. v. JOHN M. DAWSON, Circuit Judge.
    In Banc,
    October 30, 1920.
    1. CERTIORARI: Common-law Writ. In Missouri the writ of certiorari is the common-law writ, unmodified by statute. Its nature and scope and the proper use to be made of it are questions to be determined from the common-law principles and from the Missouri adjudications.
    2. -: For Review of Judicial Action. ' Geritorari will lie for the review of judicial or quasi-judicial action, but not for the review of acts which are ministerial, legislative or executive in character.
    3. -: -: Character of Tribunal. The general character o£ the acting body does not determine whether its action is judicial or legislative. Acts judicial in their nature are sometimes intrusted to ministerial or executive officers or bodies, and sometimes acts purely legislative, executive or ministerial in character are intrusted to courts of special or general jurisdiction; and the line of demarcation between legislative and judicial functions is not easy to draw.
    4. -: Extending the Boundaries of Drainage' District. The extension by the circuit court of the boundary lines of a drainage district organized in the circuit court, under the Act of 1913, Laws 1913, pages 232 to 267, is the exercise of legislative power delegated to the circuit court by the Legislature, and being such a decree of the circuit court1 extending such boundaries cannot be reviewed by certiorari.

      Certiorari.

    Writ quashed.

      Kelso é Kelso, Perry 8. Bader, 8. J. é G. C. Jones and C. E. Gibbany for relators.
    (1) Secs. 2 and 40 of Circuit Court Drainage Dist■trict Act of 1913 are in pari materia and must be read together; and when read and considered together, they mean that all the fundamental conditions for organizing a drainage district prescribed by Section 2 must be present, before the court can render judgment extending the boundary lines of such a district to include other large tracts of land. Crimes v. Eeynolds, 184 Mo. 688; Crimes v. Eeynolds, 94 Mo. App. 584; Sales v. Barber Asphalt Pav.- Co., 166 Mo. 677; Lewis-Sutherland on Statutory Construction, secs. 368, 443; Both v. Cabbert, 123 Mo. 32; Litson v. Smith, 68 Mo. App. 393; State ex rel. v. Moore, 96 Mo. App. 431; State ex rel. v. Dearing, 173 M*o. 492; State ex rel. v. Fort, 180 Mo. 112; King’s Lake Drain & Levee Dist. v. Jamison, 176 Mo. 557; Ewing v. Yernon County, 216 Mo. 692; State ex rel. v. Wiggins Ferry Co., 208 Mo. 622, 639; Keeney v. McYoy, 206 Mo. 67, j69, 74; Julian v. Kansas City Star Co., 269 Mo. 68; Bishop on Written Law, sec. 64; State ex rel. v. Chariton Drain Dist., 252; Mo. 360, 362; State ex rel. v. West, 272 Mo. 304. (2) The lands added to the Albany Drainage District by the judgment extending its boundary lines were not lands contiguous to said district, nor did the four extensions embracing said lands, together with the lands in the district as organized, constitute a contaguous body of swamp, wet or overflowed land. Weld v. People, 227 111. 556; Lincoln County Bank v. Hopkins, 47 Kan. 582; Century and Standard Dictionaries, defining “contiguous;-" Webster’s New International Dictionary (1918); No. Pac. Ry. Co. v. Douglas County, 145 Wis. 291; Askell v. Commerce Ins. Co., 69 N. Y. 192; Bolen Coal Co. v. Ryan, 48 Mo. App. '515; Holston Salt & Plaster Co. v. Campbell, 89 Ya. 396 Olson v. Fire & Marine Ins. Co., 35 Minn. 432; Raxedale v. Seip, 32 La. Ann. 435; Langlais v. Cameron, 201 111. 301; Pevereley v. People, 3 Park. Crim. (N. Y.), 59, 69; Ingersoll on Public Corporations, p. 151; Traux v. Pool, 46'Iowa, 256. (3) Sections 2 and 40 of the Act of 1913, considered together, mean that the boundary lines of the drainage district cannot be extended to include other large tracts of land except upon the petition of the owners of the majority of the acres to be added; therefore the circuit court had no jurisdiction to so extend the boundary lines of the Albany Drainage District as to add 11,039.22 other acres thereto, without’the formal consent of the owners of any of them. Elsberry Drainage Dist. v. Harris, 267 Mo. 143, 148, 151; R. S;. 1909, secs. 5500, 5570, 5760. (4) The judgment of the circuit court extending the boundary lines of the drainage district so as to include the lands of relators and other lands, without the consent of the owners of any of them, denied to relators the equal protection of. the laws guaranteed, to them by the Fournteenth Amendment of the Constitution of the United States, in that it denied to the •owners of a majority of the acres of the lands added the right by withholding their consent to prevent the extension, while Section 2 of the Act gives to the owners of a majority of the acres described in the articles ;of association the power to prevent the organization of a drainage district by witholding their consent, thus dividing a natural class into two classes, and administering the law in one way to one division of the class, and denying to the other subdivision, though alleged’ to be ■in the same situation, equal privileges and immunities. Said judgment is therefore void. State v. Thomas, 138 Mo. 95; State v. Walsh, 136 Mo. 405, 407; Cooley on Constitutional Lim. (6 Ed.) sees. 481-483; State v. Julow, 129 Mo. 163, 176; Yan Riper v. Parsons, 40 N. J. L. 1; State ex rel. v. Railroad, 195 Mo. 245; Gulf Colo. & S. F. Ry. v. Ellis, 165 U. S. 150; Barbier v. Connolly, 113 U. S. 31; State v. Haun, 61 Kan. 154; State ex rel. v. West, 272 Mo. 304; In re Drainage Dist. Buschling v. Ackley, 270 Mo. 157; Carder v. Fabius Drain. Dist., 262 Mo. 554; St. Jos. & Iowa Ry. Co. v. Shambaugh, 106 Mo. 566; Hopkins v. Council Bluffs Ry., 79 Mo. 100; Orrick School Dist. v. Dorton, 125 Mo. 439; Hunt v. Salisbury, 55 Mo. 310; State ex rel. v. Arnold, 38 Ind. 41; Knapp v. Kansas City, 48 Mo. App. 492; State ex rel. v. Wilder, 200 Mo. 105; Nishnabotna Drain. Dist. v. Campbell, 154 Mo. .157; State ex rel. v. Swearengin, 273 111. 630, 113 N. E. 166; State v. Loomis, 115 Mo. 307. If it be claimed that the Legislature can authorize the governing body of a public corporation to extend its boundary lines without the consent of the owners of the lands to be included, the answer is that the Albany Drainage District was a mere tentative organization, and the doctrine, even if anywhere upheld, has no application here, because no mere tentative or conditional corporation can extend its boudary lines. Sec. 37, Laws 1913, p. 253; In re Drainage District, Buschling v. Ackley, 270 Mo. 165; Carder v. Fabius Drainage Dist., 262 Mo. 554, 556, 559; Ry. Co. v. Shambaugh, 106 Mo. 566; City of Hopkins v. Council Bluffs Ry. Co., 79 Mo. 100; Orrick School Dist. v. Dorton, 125 Mo. 442, 444; State ex rel. y. Arnold, 36 Ind. 41; People ex rel. v. Swearengin, 273 111. 630.' (5) Precedent jurisdictional facts necessary to authorize a circuit court to extend the boundaries of a district were not present in this case, namely (a) the reclaiming of the lands added was nut alleged or adjudged to be for a public purpose, and (b) the judgment authorizes petitioners to appropriate relators’ land for rights of way without describing what lands are to be taken or naming their owners, and thereby denies to relators due process of law, in violation of Section 30' of Article 2 of the Constitution of Missouri. Laws 1913, p. 233, sec. 2; Morrison v. .Morey, 146 Mo. 563; Cooley on Const. Lim. (6 Ed.) p. 475; Gaines v. Buford, 1 Dana (31 Ky.), 484; Gifford Drain. Dist. v. Shroer, 145 Ind. 578, 579; In re Theresa Drainage Dist., 90 Wis. 301; Kinne v. Bare, 68 Mich. 625; In re Drainage Dist., 270 Mo. 171; Elsberry Drain, Dist. v. Harris, 267 Mo. 153; Nishnabotna Drain. Dist. v. Campbell, 154 Mo. 157; Chi. R. I. & Pac. Ry. v. Young, 96 Mo. 39; State ex rel. v. West, 272 Mo. 304; Council Bluffs Ry. Co. v. Campbell, 62 Mo. 585; Ellis v. Pac. Ry. Co., 51 Mo. 200; Leslie v. St. Louis, 47 Mo. 474; St. Louis v. Gleason, 93 Mo. 33, 38; City of Tarldo v. Clark, 186 Mo. 286, 298; United States v. Reed, 56 Mo. 565. (6) The board of supervisors were without authority to file a petition to extend the boundaries of the Albany Drainage District before the surveys contemplated by Section 9 of the Act of 1913 had been made, and a plan for reclamation had been adopted by the board as provided by Section 10 and filed with the clerk of the circuit court as provided' by Section 12. Until such plan had been adopted by the board and filed with the circuit clerk the court acquired no jurisdiction of a petition to extend the boundarv lines of the district. Laws 1913, sees. 9, 10, 12 and,40, pp. 237, 238, 254; Elsberry Drain. Dist. v. Harris, 267 Mo. 152; People v. Swearengen, 273 111. 630; People v. Darst, 265 111. 359; Wayne Drain. Dist. v. Boggs, 262 111. 338; Tennessee Drain. Dist. v. Moye, 258 111. 296; Kinne v. Bare, 68 Mich. 625; Simpson v. Board of Supervisors, 180 Iowa, 1337George v, Middongh, 62 Mo. 551; Bertholf v’. O’Reilly, 74 N. Y. 519; Hennig v. Stead, 138 Mo. 434; Hunt v. Searcy, 167 Mo./180; Scott v. McNeal, 154 U. S. 34. (7) The judgment 'by which the circuit court added 11,039.22 acres of land to a tentatively formed drainage district of 5,704.06 acres, upon the petition of the supervisors alone, without the consent of the owners of any of said lands so added, and against the solemn protest of the owners of 3,743.49 acres thus added, is so unreasonable as to be an abuse of the court’s power, and should be quashed on the grounds of unreasonableness. MeClesky v. State ex rel., 23 S. W. (Tex.) 518; Heinemann v. Sweat, 130 Ark. 70; Coffman v. St. Francis Drainage Dist., 83 Ark. 54; French v. Barber Asphalt Pav. Co., 181 U. S. 324; Kelly v. Meeks, 87 Mo. 396; Corrigan v. Gage, 68 Mo. 544; Copeland v. St. J'oseph, 126 Mo. 431; State ex inf. v. Kansas City, 233 Mo. 162; State ex rel. v. Mining Co., 262 Mo. 504; City of Plattsburg v. Riley, 42 Mo. App. 23; City of Cape Girardeau v. Riley, 72 Mo. 223; City of Tarkio v. C*ook, 120 Mo. 9; Elsbérry Drain. Dist. v. Harris, 167 Mo. 148; State ex rel. v. Birch, 186 Mo. 219; R. S. 1909, sec. 5760.

      D. D. Reeves and J. W. Peery for respondent.
    (1) The circuit court in fixing boundary lines of* a drainage district, or in extending said boundaries, acts as a legislative agent. That part of its duties as fixed by the Act of 1913, is not judical, but legislative. Birmingham Drain. Dist. v. Railroad, 274 Mo. 153. (2) It is well settled that certiorari, like a writ of error, will lie only where the action sought to be reviewed is judicial m character. It will not lie if such’action is the exercise of a ministeral or legislative function of government. State ex rel. v. County Court, 237 Mo. 469; State ex rel. v. Reichmann, 239 Mo. 112; Lehigh Co. v. Inc. Town of Lehigh, 136 N. W. 934, 156 Iowa, 386. The division of a municipality into wards being a legislative matter, though delegated to the council of the city, the council’s action can nut be investigated by certiorari. Fitzgerald v. Curley, 220 Mass. 503; Gas Co. v. Greenville, 165 Midi. 135; Red River Co. v. Grand Forks, 27 N. I). 8; Tiger v. Creek Co. Court, 45 Okl. 701; Teeny v. City of Columbia, 48 "Wash. 15Q. (3) In this State the writ of certiorari is governed entirely by the rule of the common law and brings up for review only the record proper of the proceeding complained of. The court can only determine whether the inferior court or tribunal acted without jurisdiction, or exceeded its jurisdiction or rendered a judgment which it had in law no right to render. State ex rel. v. Goodrich, 257 Mo. 47; Ward v. Board of Equalization, 135 Mo. 319; State ex rel. v. Reynolds, 190' Mo. 588; State ex rel. v. Casy, 210 Mo. 246; State ex rel. v. Gilbertj 164 Mo. App. 142; State ex rel. v. Ross, 177 Mo. App. 228; State ex rel. v. Reynolds, 257 Mo. 35; State ex rel. v. Ellison, 263 Mo. 514; State ex rel. v. Robertson, 262 Mo. 539; State ex rel. v. Réynolds 213 S. W. 807. (4) It is the well established law of this State that the mere fact that a person or his property has been included in a drainage district, in no manner affects his rights, provided his property has not been benefited or damaged. And this as shown by the decisions is one of the controlling reasons why this court has held that neither an appeal nor "writ of error would lie from a judgment incorporating a drainage district, or from a judgment extending the boundaries of such district. In re Birm. Drain. Disk, 270 Mo. 164; Brim. Drain. Dist. v. Railroad, 274 Mo. 140; In re Wil. Drain. Disk, 216 S. W. '530. And for the same reason it would seem a writ of certiorari would not lie. If his rights are not affected, there is no more reason why he should be entitled to a writ of certiorari, than to a writ of error, or -an appeal. (5) This proceeding was had in strict conformity to Section 40 of the Act of 1913 (Laws 1913, p. 264). Section 2 of that act relates to an entirely different matter. There is nothing contradictory in the provisions of these sections, when the purpose of each is considered. Section 2 relates to the original formation of' the district, Section 40 relates to an extension of boundaries, and is complete in itself. Not only so but it provides a usual orderly and lawful method to effect that purpose. It is too well established to admit, denial that in extending boundaries the municipal corporation may take the initiative, and bring in other lands without the consent of the owners. And this court has applied this rule and doctrine to drainage districts. Drainage Dist. v. Turney, 235 Mo. 90. The above ease has been many times cited with approval by this court, and also by the Supreme. Court of the United States. Houck v. Little River Dist.', 239 U. S. 261, 60 L. Ed. 273. The record in this cause complies with and answers every jurisdictional requirement which this court has held to be necessary to a valid judgment, for the extension of the boundaries of a drainage district, under Section 40 of the Act of 1913, or under prior laws. Elsberry Drain. Dist. v. Harris, 267 Mo. 152; Drain. Dist. v. Turney, 235 Mo. 95. (6) As to the constitutional question attempted to be raised by relators in the first paragaph, in point Y, pp. 118-9 -of his brief, we think it is sufficiently answered by what this court has said on a former occasion. Drain. Dist. v. Turney, 235 Mo. 93.
   WILLIAMSON, J.

This is an original proceeding by certiorari in this court, against the respondent as judge of the Gentry County Circuit Court. The object of the proceeding is to quash the record of that court in a, proceeding for the extension of the boundary line of the Albany Drainage District.

The Albany Drainage District obtained a preliminary decree of incorporation at the March Term, 1917, of the court aforesaid. The proceeding was under the Act of 1913, Laws 1913, pages 232 to 267 inclusive, with reference to the incorporation of drainage districts by ciruuit courts. Thereafter, in July, 1918, the board of supervisors of the drainage district filed in the office of the Circuit Clerk of Gentry County, a petition asking that the boundary line of the district be extended so as to include lands not included in the original articles of association and decree.- Omitting formal allegations, and the description of the lands asked to be included, this petition is as follows:

“Petition of the Board of Supervisors of the Albany Drainage District, to amend the decree incorporating said district by changing the boundary lines thereof so as to include lands not described by or included in the articles of association and decree of this court incorporating said district.
“The undersigned petitioners state that they constitute and are the Board of Supervisors of the Albany Drainage District and make and file this petition for and on behalf of said drainage district.
“These petitioners' state that all of the lands and other property hereinafter described, owned by divers persons as hereinafter stated, are swamp, wet and overflowed lands and lands subject to overflow; that all of said lands and other property lie adjacent to the lands of the Albany Drainage District as described in the decree of this court incorporating said drainage district; that all of said lands are greatly in need of drainage to protect them from overflow and the evil effects of water; that the chief engineer of the Albany Drainage District has prepared a plan of reclamation for said drainage district, which the board of supervisors of said district will adopt and execute, and that all of the lands and other property hereinafter described will be benefited, improved and reclaimed, in whole or in part, by the execution of the plan of reclamation hereinbefore mentioned, and that no feasible and adequate plan of reclamation can be devised, the execution of which will reclaim and protect the lands now in. said district from the evil effect of water, which will not also, in whole or in part, protect from overflow, and reclaim and protect from the evil effect of water the land hereinafter described; that the several tracts of land and other property hereinbefore mentioned, together with the -individual ownership of said lands and property are as follows, to-wit:
[Here follows a description of the lands.]
“Wherefore these petitioners pray the court to so amend its decree incorporating the Albany Drainage District, made and entered of record by this court on the 22nd day of May, 1917, as to include in said district the lands and other property hereinbefore described, and to so change and extend the boundary lines of said district that they will when changed and extended be boundary lines as hereinbefore mentioned and described; and these petitioners further pray the court to appoint three commissioners, who shall be freeholders residing within the State of Missouri, and who shall not be landowners in said district nor of ldn within the fourth degree of consanguinity to any person owning land in said district, • to appraise the lands that shall be taken for rights-of-way, holding basins and other works, and to assess the benefits and damages to any and all lands, public highways, railroad and other property already in the district or that may be annexed, to the district by the change of boundary lines herein prayed for.”

The statutory notice of the filing of this petition was given, objections were filed by a large number of the landowners, all of which were overruled by the court, except as to a relatively small portion of the lands asked to be included, and at the December Term, 1918, the court entered the following decree:

“Now, on the 9th day of December, 1918, this cause having been heretofore heard by the court, upon the petition and objections herein filed, and having heretofore been submitted to the court, and by the court taken under advisement, and now on this day, being the first day of the regular December, 1918, term of this court, this cause coming on to be decided, the court doth find that due notice of the filing of the petition herein has been given, by publication, for the time and in the manner provided by law, that all of the lands and other property described in said petition are swamp, wet and overflowed lands and lands subject to overflow; that all of said lands and other property lie adjacent to the lands of the Albany Drainage District as described in the original decree of this court incorporating said drainage district; that all of said lands are greatly in need of drainage to protect them from overflow and from the evil effect of water; that the chief engineer of the Albany Drainage District has prepared and the board of supervisors of said district have adopted a plan of reclamation for said district which is a proper, reasonable and practical plan for the reclamation of the lands of said drainage district; that all of the lands described in plaintiff’s petition, except such lands therein described as lie in sections twenty-three (23) and twenty-four (24), in township sixty-two (62), of range thirty-two (32), are of such character and are so situated that the execution of the plan of reclamation adopted by the board of supervisors of said district will greatly benefit said lands, and will reclaim, in whole or in part, said lands from overflow and the evil effects of water, and that owing to the character and situation of such lands, and the intimate drainage conditions and relations existing between such lands and the lands of 'said, district, no adequate plan of reclamation can be devised which will not in whole or in part reclaim and protect, such lands from the evil effects of water.
“The court further finds that the lands described in plaintiff’s petition, lying in sections twenty-three and twenty-four in township sixty-two of range thirty-two, will not be reclaimed and protected from overflow and the evil effects of water by the execution of the plan of reclamation adopted by the board of supervisors of said district.
“It is therefore by the court ordered, adjudged and decreed that the boundary lines of the said Albany Drainage District, as established by the decree of this court incorporating said distinct, be amended and extended so as to include all-of the lands described in plaintiff’s said petition, except the lands described in said petition lying in said sections twenty-three and twenty-four, said lands hereby included within the boundary lines of said drainage district, and the ownership of the several tracts thereof being- as follows, to-wit . . .
“That for the purpose of including within the boundary lines of the said Albany Drainage District, the lands and other property hereinbefore described, the decree of this court organizing said district is hereby amended and the boundary lines therein changed and extended so that when changed and extended so as to include said lands and other property hereinbefore*Rescribed, the changed, amended and extended boundary lines of said district shall be and are hereby adjudged and decreed to be as follows, to-wit: . . .
“It is further ordered and adjudged that Charles L. G-arrell, TI. H. McClurg and "William Blackford, three freeholders residing within the State of Missouri, and who are not owners of land in said district, nor of kin within the fourth degree of consanguinity to any person owning land in said district, be and they are hereby appointed commissioners to appraise the lands that shall be taken for rights of way, holding basins and other works of said district, and to assess the benefits and damages to any and all lands, public highways, railroad and other property, in the original district, and which have been annexed to said district by this judgment and decree, from the execution of the plan of reclamation adopted by the board of supervisors of said drainage district. ’ ’

Thereafter, in due time the objectors filed motions for a new trial and in arrest of judgment, both of which were overruled, and objectors also prepared and filed a bill of exceptions, which was duly signed and made a part of the record of the trial court. The objectors thereupon filed an affidavit and application for an appeal. The lower court denied an appeal, and after ineffectual efforts to obtain an order- allowing the appeal in this court, the objectors have brought this proceeding.

Respondent’s return consists of the decree incorporating- the drainage district, the petition and articles of association praying for the incorporation of the district, and a complete transcript of the record of the proceedings to extend the boundary lines of the district, including the bill of exceptions.

The application for the writ of certiorari states, in substance, the incorporation of the drainage district, alleges that the original petitinn asked for the incorporation of a district containing about 5704.6 acres of land-; and that the petition was signed by the owners of 3085.34 acres of said' land; that a decree of incorporation was duly granted, a board of supervisors elected, and that the board of supervisors thereafter filed a proceeding for the extension of the boundary lines of the district so as to include 11,508.79 additional acres of land; that the decree of the trial cou,rt extended the boundary lines so as to include 11,039.22 acres, thereby creating a district of 16,743.49 acres. It is further alleged in the application for the writ that the lands so included are not one contiguous body of land, but include an extension northward from the north line of the district up the east fork of Grand River, for a distance of four miles, and an extension southward from the south line of the district along Grand River about two and three-fourths miles, and westward from the southwest corner of the district up the west fork of Grand River, and northward about seven miles up the middle fork of Grand River. It is further alleged in the petition that no plan for the reclamation of the lands- embraced in the drainage district had ever been prepared and adopted as required by Section 12 of the Laws of 1913, prior to the filing of the petition for extension; that no plan of reclamation was adopted until during the trial of the action for an extension of the boundaries of the drainage district; that none of the landowners whose lands were thus sought to be included consented that their lánds might be annexed to the district; that the lands proposed to be annexed are not adjacent to the lands embraced in the district; that the addition of these lands was not necessary in order to drain the lands already embodied in the district; that the proceeding for the original incorporation of the Albany Drainage District was undertaken after the promoters of that scheme learned that they could not obtain the consent of the owners of the majority of the lands intended to be included in the original plan for a drainage district, and that thereupon the promoters had incorporated the smaller district with the intent and purpose of thereafter extending its boundaries and taking in the lands of the objectors without their consent, and against their will, and that for the reason stated the trial court was without jurisdiction to hear or grant the petition to extend the boundary lines so as to include the lands belonging to the objectors.

Other grounds are also set forth, but those stated will give a fair'idea of the nature of this proceeding, and of the principal reasons upon which it is based'.

Respondent has filed a motion to quash the writ heretofore issued in this proceeding, upon the following grounds:

“1. Because the writ of certiorari was improvidently issued.
“2. Because the record filed in this court in obedience to the said writ shows that the Circuit Court of Gentry County had complete jurisdiction of the proceeding complained of; and that all of its proceedings therein were within its jurisdiction and according to law; and within the act of the Legislature under which the proceeding was instituted, conducted and had.
“3. Because the record filed in this court in obedience to said writ fails to show any want of jurisdiction in the said circuit court to enter the decree complained of; and fails to show that said court in said proceeding or in the entering said decree acted in excess of its lawful jurisdiction.
“4. Because the Circuit Court of Gentry County in extending, fixing, and determining, the boundaries of said drainage district and in entering the decree therefor complain ed of by relators in this proceeding, acted not in a judicial, but in a legislative capacity, as a mere legislative agent; and its action in that behalf was not judicial, nor quasi-judicial, but was legislative in character, and cannot be reviewed in this proceeding.”

Upon this-record the cause has been briefed, argued and submitted. Such other matters of fact as may be necessary, if any, will be found in the body of the opinion.

It is asserted in behalf of respondent that certiorari will not lie in this instance, for the reason that the action sought to be reviewed is non-judicial in character. This contention is vital, and, if sustained, disposes of this case. The question is a familiar one in this and many other jurisdictions.

Certiorari is a remedy narrow in its scope and inflexible in its character. It is not a general utility tool in the legal workshop. It cannot.be made to serve the purpose of an appeal or writ of error. All that can be done under it is either to quash or to refuse to quash the proceedings of which complaint is made. In the case at bar, we may either quash the record '/of the trial court or quash the writ. No other course is open to us. Whether the one action or the other shall be taken, depends upon the character of the action which we are called upon to review. Upon these statements the authorities, except in sporadic instances, are practically 'agreed. In this State, the writ of certiorari as applied in this case, is the common law writ, unmodified by statute. Its nature and scope and the proper use to be made of it, are questions to be determined from the common law principles and from our own decisions. In an early case, Bliss, J., speaking for the court in a certiorari proceeding brought to quash the record of the County Court of Saline County in subscribing for stock in a railroad company, said:

“Before considering any othér question, the preliminary one must be decided, whether certiorari will lie in a case of this kind. ‘A certiorari is an original writ issued out of chancery or the King’s Bench, directed in the King’s ñame, to the judges or officers of inferior courts, commanding them, to return the records of a cause depending before them to the end that the party may have the more sure and speedy justice, ’ [Bac. Abr., Certiorari, A.] The matter not being regulated by statute in Missouri, either as to the cases in which this writ may issue or the practice under it, we are left entirely to the general law. The writ issues only to inferior courts and to review only judicial action. Was, then, the action of the County Court of Saline County, in subscribing to the stock of this railroad company and issuing bonds, a judicial action? Judicial /action is an adjudication upon the rights of parties who in general appear or are brought before the tribunal by notice or process, and upon whose claims some decision or judgment is rendered. It implies impartiality, disinterestedness, a weighing 'of adverse claims, and is inconsistent with discretion on the one hand — for the tribunal must decide according to law and the rights of the parties— or with dictation on the other, for in the first instance it must exercise its own judgment under the law, and not act under a mandate from another power.” [In the matter of the Saline County Subscription, 45 Mo. l. c. 53.]

The writ was quashed. This is an oft-cited case, and from the general principle there enunciated we have never departed, though in specific instances it is not always easy to harmonize the action of the court with the general rule thus laid down. The principle is reiterated in State ex rel. v. County Court, 237 Mo. 460, l. c. 469; State ex rel. v. Harrison, 141 Mo. 12, l. c. 18, and is expressly stated or impliedly recognized in many other cases. It is also the general rule in other jurisdictions. [11 C. J. sec. 67, p. 120, and cases there cited.]

The practical difficulty comes, of course, in applying this general principle to the facts in a particular case. Certiorari will lie for the review of judicial or quasi-judicial actions, hut not for the review of actions which are ministerial, legislative or executive in character. The general character of the acting body does not determine the question. Acts judicial in their nature are sometimes intrusted to ministerial or executive officers or bodies, and, at times, acts purely legislative, executive or ministerial in their character are intrusted to courts of general or special jurisdiction. The line of demarcation between legislative, executive and judicial functions is not easy to draw. These functions shade into one another as imperceptibly as the mountain merges into the valley, or the river into the sea..

In the case of In re Birmingham Drainage District, 274 Mo. 140, a somewhat similar question arose. The court said, at page 151:

“To accomplish the single purpose of putting in action a drainage district required not only the enactment of a statute fixing the extent, purpose and general powers of the district which is a purely legislative function, but the appropriation of private property for such purpose and determining the damage therefor by jury trial, which are distinctly judicial .functions. Between these lies ‘no man’s land,’ a region of action unclassified by the terms of the Constitution.”

The specific question there involved was the assessment of benefits and damages, and this was held to involve the exercise of judicial functions, but it will be noted that it was also held in that case that the matter of fixing the boundaries of a drainage district was purely legislative in character. To the same effect is the case of Houck v. Little River Drainage Dist., 248 Mo. 373, l. c. 386-387, wherein we said:

“It is safe to say that the doctrine is firmly established in this State that the Legislature, acting within its constitutional powers, may fix the territorial limits of special taxing districts, and may also fix the actual or maximum amount of special assessments, which it may place at a level rate, founded upon a unit of area or frontage, or at a rate founded upon a proceeding to ascertain the actual benefit accruing to each particular tract; or it may delegate any or all these powers to an appropriate agency to be chosen or created by it, [Little River Drainage Dist. v. Railroad, supra; Columbia Bottom Levee Company v. Meier, supra; Meier v. St. Louis, 180 Mo. 391, 408, and cases cited; Mound City Land & Stock Company v. Miller, 170 Mo. 240; St. Joseph to use v. Farrell, 106 Mo. 437; Prior v. Construction Co., 170 Mo. 439, 448 and cases cited.] ”

If the Legislature could itself fix the boundaries of drainage districts, or intrust that power, legislative in its nature, to other bodies, judicial or non-judicial in their general character, and if, as these and numerous other cases in this.State, hold, the delimitation of drainage districts is legislative in character, no matter by whom such boundaries are fixed, it is clear that the method of fixing such boundaries whether by an original decree of incorporation or by extension proceedings, is wholly immaterial. In either event it is a legislative act, and therefore not subject to review by our writ of certiorari. The bare creation of a drainage district is, after all, simply the creation of a district within which certain taxes may be levied, by certain designated agencies and for certain specified purposes. To this extent a drainage district is on a parity with any other taxing district. It is plain, on principle, that the Legislature if it saw fit to do so might divide the entire State-into taxing districts for the purpose of levying an income tax, for example, or for general taxation purposes. In so doing it is also palpable that the Legislature might fix the boundaries of such districts, or it might intrust that duty to subordinate agencies. The subordinate agencies so designated and empowered may be the people living within the territory to be embraced in such district, and the action necessary to create the district may be informal in the extreme, as witness the provisions for forming new school districts, for dividing or consolidating existing school districts, or for changing the boundary lines thereof, as regulated by Artcle 3 of Chapter 106, Revised Statutes 1909. The mere fact that the lands of the relators in this case have been incorporated into the Albany Drainage District does not, ipso facto, in any manner affect relator’s rights in the premises, so long as their property has neither been benefited nor damaged.

“Prom this it is evident that it is the taking or damaging of the property, and not the incorporation of the district that affects the owners’ rights.” [In re Drainage Dist.; Buschling v. Ackley, 270 Mo. 157, l. c. 164.]

See also cases cited in the Ackley case, supra, Further authorities to the same effect might easily be cited.

We therefore hold that certiorari does not lie under the facts now before us, according to the doctrine prevailing in this State.

Having reached this conclusion, it becomes unnecessary to discuss numerous important questions presented in the exceptionally able briefs of counsel both for relators and respondent.

For, the reasons stated, the writ of certiorari heretofore issued in this cause should be quashed. It is so ordered.

All concur, except Woodson, J., absent.