text:
    J. C. BRADLEY v. JOHN W. GOFF et al., Appellants.
    Division One,
    May 31, 1912.
    1. ABSTRACT: Record Proper: Bill of Exceptions. The fact that in the appellant’s abstract the recital of the filing and overruling of the motion for a new trial appears before the heading “Bill of Exceptions,” while the recital of the signing and sealing of the bill of exceptions follows that heading, does not alter the fact that the abstract contains a bill of exceptions, nor does it make the recitals of the signing and sealing of the bill any the less a part of the record proper.
    2. REAL PROPERTY: Grant: Life Estate with Remainder Over. A grant to a person “during the term of his natural life, and at his death then to his lawfully constituted heirs,” creates a life estate in that person with the remainder in fee at his death to his heirs.
    3. TAX SALE: Interest Affected: Life Estate. A sale of land by suit for unpaid taxes against the original life tenant and his vendee carries all the title and interest possessed by either of them at the time, but does not affect the interest of the persons who shall be entitled as remaindermen at the death of the original life tenant.

      ■i. TAXES: Paid by Life Tenants, of Land. It is tlie duty of the owners of a life estate to pay the ordinary annual taxes assessed against the property, and upon their failure so to pay, suit is properly brought against them.
    5. LIMITATIONS: Remaindermen not Entitled to Possession. The Statute of Limitations does not run in favor of one in possession of land, as against remaindermen, until those remainder-men are entitled to possession..
    6. REMAINDER: Vendible Interest in Land. Under a deed reading to A for his natural life, “and at his death, then to his lawfully constituted heirs,” the interest'of the remaindermen is vendible.
    7. PRACTICE: Counter-Relief: Sought by Members of Class not Yet Determined., The defendants in this suit to quiet title, who are remaindermen under a deed reading to A for his natural life, “and at his death, then to his lawfully constituted heirs,” are not entitled to any counter-relief against the plaintiff, who owns and is in possession of the life estate, for those remaindermen are not yet entitled to possession of the premises, and it cannot be known until the death of A who will “then” be his heirs;
    Appeal from Macon Circuit Court. — No». Nat M. Shelton, Judge.
    Reversed and remanded (with directions).

      Tories $ Tories and WebbM.Rubey for appellants.
    (1) An action brought against a life tenant only, and a sale of the land under the judgment rendered therein, does not affect the title of the remaindermen. McCune v. G-oodewillie, 204. Mo. 341. (2) There could be no adverse possession against the remainderman as it was the duty of the life tenant to pay the taxes, and the remainderman had no right to possession until the death of the life tenant. McCune v. Goodewillie, 204 Mo. 341. (3) The old rule for the interpretation of conveyances was that “if there be a repugnancy, the first words in a deed, and the last words in a will, shall prevail.” But the Missouri rule is that the intention of the grantor as gathered from the four corners of the instrument is the pole star of construction. That intention may be expressed anywhere in the instrument and in any words, and the courts will enforce it, no matter in what part of the instrument it is found. Utter v. Sidman, 170 Mo. 284; Miller v. Dynn, 184 Mo. 318. (4) Words of limitation occur in the deed from Abbott P. Goff to John W. Goff in both the granting and habendum clause, “during the term of his natural life, and at his death, then to his lawfully constituted heirs,” “unto the said party of the second part and to his lawfully constituted heirs, as first herein provided.” These words clearly and unmistakably create a limitation upon the grant to John W. Goff. It is clear that Abbott P. Goff intended to grant a life estate only to his son John W. Goff and equally clear that he intended John W. Goff’s heirs to take the remainder. Pratt v. Eailroad, 130 Mo. App. 175.

      B. B. Bysart for respondent.
    (1) Matters pertaining to the record proper cannot be shown by the bill of exceptions. If under this record the bill of exceptions cannot be considered by the court, then the only matter to be reviewed by this court is the record proper. And if the plaintiff’s petition states a cause of action, and the court had jurisdiction of the parties and the subject-matter of the action, then the judgment below must be affirmed. In support of the motion to affirm, the respondent cites a few of the many decisions of this court on the insufficiency of the abstract. Hutson v. Allen, 236 Mo. 645; Stark v. Zehnder, 204 Mo. 442; Keaton v. Weber, 233 Mo. 691; Alt v. Dines, 227 Mo. 418; Thorp v. Eailroad, 157 Mo. App. 495; Nickey v. Leader, 235 Mo. 30; Harding v. Bedoll, 202 Mo. 625; Hayes v. Foos, 223 Mo. 421. (2) The deed from Abbott P. Goff to John W. Goff during his natural life and then to his “lawfully constituted heirs,” meant the lawfully constituted heirs in being at the time of Ms death. Emmerson v. Hughes, 110 Mo. 627. The lawfully constituted heirs of John W. Goff took at most only a contingent remainder, contingent upon the fact that they survived John W. Goff, the life tenant. The question arises, did the ‘ ‘ lawfully constituted heirs” of John W. Goff take by purchase or by inheritance? Evidently by inheritance, and if so, John W. Goff took a fee simple title. The deed from Abbott P. Goff to John W. Goff sends the land by descent exactly the same as if the deed had read to John W. Goff and his heir. The said deed means that at the death of John W. Goff, the land should descend to Ms heirs in general. The learned counsel for the defendants seem to regard the said deed .as creating a fee tail, in which event the first taker would take a life estate, remainder in fee to the remaindermen. But it is evident that the Abbott P. Goff deed did not create a fee tail, for the lack of words of procreation. 11 Am. & Eng. Ency. Law (2 Ed.), p. 371; Tygard v. Hartwell, 201- Mo. 2001; Reed v. Lane, 122 Mo. 311; Yocum v. Siller, 160 Mo. 292; Gannon v. Pauk, 200 Mo. 75. (3) If the State in enforcing its lien for taxes on real estate was limited to the sale of the life estate therein, there would be no purchaser at the tax sale, for the life estate might terminate in a day, a week, a month or a year. The following are cases showing what interest the purchaser gets to land at a tax sale. Gitchell v. Kreidler, 81 Mo. 172,175; Strafford v. Fizer, 82 Mo. 393; Evans v. Robbinson, 92 Mo. 192; Allen v. Ray, 96 Mo. 512; Moore v. Woodruff, 116 Mo. 597, 602; Stuart v. Ramsey, 196 Mo. 101. Our contention is that contingent remaindermen are not necessary parties to a suit by the state to enforce its lien, and only parties having a vested interest are necessary parties,
   BOND, C.

This suit to quiet title is brought by plaintiff, J. C. Bradley, who claims under a sheriff’s deed, dated March 17, 1891, following a sale for taxes. Defendants are John W. Goff and Nathan D. Goff, the former a life tenant of the land, and the latter his vendee under a quitclaim, with whom are joined the four children of John W. Goff and the husband of one of them. In their answer the defendants set out their relationship to John "W. Goff, allege that he has no interest in the land described in the petition, having sold his life estate therein to his co-defendant, Nathan D. Goff, and that the estate in fee to said lands belongs to the said children of John W. Goff, subject to the life estate which he conveyed. They pray' the court to adjudge in whom said life estate is now vested, and that said four children be declared to be remaindermen in fee, and that the life tenant be required to conserve the estate, pay taxes, and at the death of John W. Goff to render possession to his children.

Jury was waived, and the cause was submitted to the court upon a stipulation containing an agreed statement of facts, in substance, to-wit:

1. On August 5, 1879, Abbott P. Goff, who then owned the land in dispute executed a general warranty deed to Ms son, John W. Goff, the granting clause of which is, to-wit: “Do by these presents, grant, bargain and sell, convey and confirm unto the said party of the second part (John W. Goff) during the term of Ms natural life, and at his death, then to his lawfully constituted heirs, the following described lots, tracts or parcels of land lying and being situate in the county of Macon, State of Missouri,” etc. The habendum clause is, to-wit: “To have and to hold the premises aforesaid, with all and singular the rights, privileges, appurtenances and immunities thereto belonging, or in any way appertaining, unto the said party of the second part (John W. Goff) and to his lawfully constituted heirs, as first herein provided.”

2. That on February 25,1885, the defendant John W. Goff, the grantee in the above deed, by quitclaim deed of that date, duly recorded, conveyed his interest in said land to his co-defendant, Nathan D. Goff.

3. In- October, 1890, suit was brought for taxes on said land against said John W. Goff and Nathan D. Goff, and against no one else. That judgment for taxes was rendered, and a sale under said judgment was made March 17, 1891, and J. 0. Bradley, the plaintiff in this suit, became the purchaser of said land and received a sheriff’s deed therefor, which is duly recorded.

4. J. 0. Bradley, the plaintiff in this case, has had possession of said land since the date of his purchase aforesaid, and is now in possession thereof, under and by virtue of said tax deed.

5. That John W. Goff, the person to whom said deed was made by his father as hereinbefore stated is yet living and has the following children, to-wit: Mary G. McOloy, intermarried with Moses H. McCloy; John W. Goff, Jr., Nathan D. Goff, Jr., and "Waldo P. Goff, Jr. (a minor). These named children are the sole and only lawful heirs of said John W. Goff and to whom the fee in said land would go at this time, was the said John W. Goff, to whom a life estate was granted, as aforesaid, dead.

6. Copies of the deeds referred to in this agreed statement of facts may be introduced in evidence.

The agreement of facts contained other matters not material, and was signed by all the parties.

The court rendered judgment upon the pleadings and evidence, that the plaintiff was the owner in fee of the land described in' the petition, and that the defendants have no right, title or interest in or to the same.

After the overruling of their motion for a new trial, the defendants appealed to this court.

OPINION.

I. Respondent complains in Ms brief tbat tbe abstract filed in this court by appellants fails to show in tbat portion devoted to a recital of the record proper tbat tbe bill of exceptions was duly signed and made a part of tbe record proper, and tbat tbe motiqn for new trial was filed and overruled. While tbe beading of tbe bill of exceptions appears in tbe abstract a paragraph ahead of tbe place where tbe bill of exceptions begins, we do not think tbat alters tbe fact tbat tbe abstract contains a bill of exceptions; nor do we think tbat tbe fact tbat between this beading and tbe beginMng of tbe bill of exceptions there is an intervening paragraph which contains recitals which should appear in tbe record proper, makes them any less a part of tbe record proper because of tbe prefix of tbe beading of tbe bill of exceptions. Tbe character of tbe recitals in tbe abstract is shown by intrinsic evidence afforded by their contents, and no mere mislocation of tbe beading of tbe bill of exceptions can affect tbe character of tbe respective entries. [Sanguinette v. Railroad, 196 Mo. 486.] We, therefore, overrule the motion in respondent’s brief to dismiss this appeal or affirm tbe judgment.

II. Tbe terms of tbe granting and habendum clauses in tbe deed to John W. Goff created by express terms a life estate in him with tbe remainder in fee at bis death to bis “lawfully constituted heirs.” This latter expresssion is merely a tautological way of referring to bis heirs at tbe time of bis death, for there can be no heirs who are not lawful heirs. Tbe term itself necessarily implies tbat tbe persons included under it are of tbe class “constituted” heirs by tbe law. Hence, tbe redundant, phrase used in tbe present deed meant no more than if tbe word “heirs” had been substituted for it. This being its meaning, tbe persons who shall be tbe lawful “heirs” of John W. Goff at his death are entitled “then” to a remainder in fee in the land described in the deed to him.

The sale of this land by suit for unpaid taxes against the original life tenant and his vendee carried all the title and interest possessed at the time by either of them, but it did not affect the interest of the persons who shall be entitled as remaindermen at the death of John "W. Goff. At the time the tax suit was instituted, the record shows that the estate of John W. Goff was only for his life, and that he did not convey to his vendee, Nathan D. Goff, any greater estate. Hence, the only two defendants to the tax suit were the representatives only of a life tenancy in the land. Necessarily, therefore, the only estate which passed under the sheriff’s deed made after the sale for taxes was the qualified interest of one of the defendants for the life of the other. [R. S. 1909, sec. 11498; Vance v. Corrigan, 78 Mo. 94.] It was the duty of the owners of the life estate to pay the ordinary annual taxes assessed against the property. [Hall v. French, 165 Mo. l. c. 438; Bone v. Tyrrell, 113 Mo. 175.] Upon their failure so to do suit was properly brought against them, and, as far as this record discloses, all the title they had in the land passed after the sale for taxes and the deed in accordance therewith executed by the sheriff. The plaintiff’s title in this ease rests wholly on the sheriff’s deed; that deed could not convey to the plaintiff an estate in the lands belonging to other persons than the defendants in the tax suit; and, hence, did not warrant the judgment rendered in this case adjudging the plaintiff was vested with the fee simple title to the land in dispute.

Respondent suggests that the Statute of Limitations ran in his favor. Obviously there is no merit in that contention, for the remaindermen in the deed under review are not yet entitled to the possession of their estate. [Hall v. French, 165 Mo. l. c. 439; Thomas v. Black, 113 Mo. l. c. 70.] Respondent further suggests that the interests of the remainderman under the deed in question is not vendible. This is a misapprehension of the law. [R. S. 1909, sec. 2787; Brown v. Fulkerson, 125 Mo. l. c. 403; Godman v. Simmons, 113 Mo. 127.]

The finding of the learned trial judge that the plaintiff was seized of an indefeasible estate in fee in the premises described in his petition was erroneous. The plaintiff can have no interest in the premises in question beyond the life of John W. Goff. After his death they belong in fee to the persons who shall “then” be his lawful heirs. They are not at present entitled to any counter-relief against the plaintiff in this action, for they are not yet entitled to possession of the premises, and it cannot be known until the death of John W. Goff who will “then” be his heirs. When that happens defendants may or may not belong to that class.

The judgment is therefore reversed and the cause remanded to the trial court to dismiss the plaintiff’s petition.

Brown, C., concurs.

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

All the judges concur.


source: Caselaw Access Project

author: WOODSON, J.

license: Public Domain

text:
    HENRY KUNZI et al., Appellants, v. BETTIE HICKMAN.
    Division One,
    May 31, 1912.
    1. SUMMONS: Order of Publication. Where constructive s.ervice is resorted to, strict compliance with the statute governing it must be observed.
    2. -: -: Affidavit: Sufficiency. A separate affidavit, made to support a petition for divorce, alleging non-residence of defendant, is not sufficient to authorize an order of publication if (1) it fails to state in what court the case is pending and the time when defendant should appear and defend, or (2) if it fails to state briefly the object and general nature of the petition; and an affidavit stating that “now comes plaintiff . . . and in aid of her petition for divorce,, on her oath says that the said ... is a non-resident of the State . . . and prays that an order of publication be issued against him, notifying him of the beginning of this suit, the object and general nature thereof, by the clerk,” does not state the object and general nature of the petition.
    3. -: -: Affidavit of Non-Residence: Publication of Desertion. Where the affidavit charges that defendant in the . divorce suit is a non-resident, an order of publication in no wise referring to his non-residence, but reciting that defendant has deserted the plaintiff and'has absented himself from his usual place of abode in this State, so that, etc., is void, and a publication thereof constitutes no service at all, and the judgment decreeing divorce made in pursuance thereof is also void, for want of jurisdiction.
    4. -: -: Void Judgment in Divorce: Collateral Attack. While it is a general rule of law that the courts will presume, in a collateral proceeding, that a court of general jurisdiction properly acquired jurisdiction over the parties to the cause adjudicated by it, nevertheless that presumption must yield to a positive showing that the court in fact did not acquire jurisdiction; and recitals of service of process contained in the judgment must be construed in connection with the whole record, and may be shown to be untrue and be overthrown by other recitals in other record matters of equal dignity and importing equal verity, and besides a recital in a judgment that defendant was duly summoned by publication refers to the service shown by other portions of the record; and those portions that may be used to impeach the judgment and to show the court had no jurisdiction are the affidavit charging non-residence, the order of publication and the publication itself; and such judgment may be -collaterally attacked. So that the heirs of an intestate decedent, in their suit to quiet title, may show that a marriage of defendant with decedent was bigamous and void by showing that she had formerly been married and had sued her husband for divorce, and that the affidavit alleging non-residence and the order of publication were void, and ■ in consequence thereof the court obtained no jurisdiction over her husband and the judgment of divorce was therefore void.
    Appeal from Warren Circuit Court. — Hon. James D. Barnett, Judge.
    Reversed and remanded (with directions).

      J. W. Delventhal, and E. Ttosenberger for appellants.
    (1) A divorce proceeding is a proceeding in rem. Anderson v. Anderson, 54 Mo. App. 268; Hedrix v. Hedrix, 103 Mo. App. 40. (2) Strict compliance with, the statute is required when constructive service is substituted for actual service. Burge v. Burge, 9'4 Mo. App. 15; Myers v. McKay, 114 Mo. 377; Harness v. Cravens, 126 Mo. 247; Tooker v. Leake, 146 Mb. 431; Turner v. Gregory, 151 Mo. 100; Parker v. Barton, 172 Mo. 85; Cummings v. Brown,- 181 Mo. 711; Kelley v. Murdagh, 184 Mo. 381; Hinkle v. Lovelace, 204 Mo. 208. (3) The statute has not been strictly complied with and the alleged divorce decree of Hickman v. Hickman is void and a nullity because: (a) The original petition contained no affidavit upon which an order of publication could be based, but a writ of summons was issued directed to the sheriff of Warren county, which was returned non est before the return day by the sheriff of Callaway county; and no order for an alias writ or for an order of publication was made at the October term, 1903, as should have been done, (b) The affidavit of Bettie Hickman filed in vacation on February 19, 1904, alleging non-residence of Jesse Hickman was fatally defective and a nullity, because filed without authority of law and because the affidavit failed to state in what court or where any divorce proceeding was pending, (c) The publication in the case of Hickman v. Hickman spread on the record evidently ignores the affidavit filed February 19, 1904, for it recites that it is based on the petition and -affidavit filed October 13, 1903. (d) If the order of publication as spread on the record is based upon the affidavit filed February 19, 1904, the order of publication is void and is a nullity, because the order of publication recites that defendant has deserted this plaintiff and the defendant has absented himself from his usual place of abode in the State so that the ordinary process of law cannot be served upon him, whereas the affidavit filed February 19, 1901, recites that the said Jesse Hickman is a non-resident of the State of Missouri and that the ordinary process of law cannot be served upon him. (e) The constructive service had upon defendant Hickman by the publication published in the newspaper was null and void because the order of publication spread upon the record recites that defendant has deserted this plaintiff and the defendant has absented himself from his usual place of abode in the State so that the ordinary process of law cannot be served upon him, whereas the order of publication as published in the newspaper recited that defendant has deserted this plaintiff from his usual place of abode in this State so that the ordinary process of law cannot be served upon him. (f) The alleged judgment in the divorce case of Hickman v. Hickman is void because the same fails to affirmatively show that the court ever acquired' jurisdiction over the defendant in this: Said judgment fails to show that the order of publication was published for four weeks successively and ■ published at least once a week, the last insertion being at least fifteen days before the commencement of the term at which the defendant was required to appear. Laws 1901, p. 85'.

      John W. Booth and Jesse H. Schaper for respondent.
    (1) As to the matters essential to the validity of an order of publication made in vacation by a clerk of a court of general jurisdiction to bring in a non-resident defendant in a case in which a proper allegation or affidavit of non-residence has been filed, respondent here makes the point that nothing more is essential than is expressed in the opinion of the court in the case of' Charley v. Kelley, 120' Mo. 131, to-wit: “The statute only requires that the court in which the suit is brought, or in vacation the clerk thereof, shall make and order directed to the non-residents . . . notifying them of the commencement of the suit, and stating briefly the object and general nature of the petition, . . . and requiring such defendant or defendants to appear on a day to be named therein, and asswer the petition, or that the petition will be taken as confessed. And, further, the order as made and published meets substantially every requirement of the statute. It was not necessary that the record should contain a recital that the order was made by the clerk or that it was made upon the authority of an affidavit. ’ ’ Charley v. Kelley, 120 Mo. 141, 142; R. S. 1909, sec. 1770. (2) Error of the clerk in misreciting in the order of publication facts relating to his authority to make the order will not be sufficient to render the publication, and the judgment based thereon void, when on the whole record, the legal presumptions in favor of the jurisdiction of a court of general jurisdiction are inconsistent with such misrecital, and consistent with the legal presumption of jurisdiction. Adams v. Cowles, 96 Mo. 501; Randall v. Snyder, 214 Mo. 23. (3) If an order of publication is directed to the proper party by Ms proper name, and states the matters of fact which the statute requires in such an order, and the proof of the publication is submitted to the court, and the court finds that the defendant has been duly and legally brought into court by such publication, a judgment rendered upon such publication cannot he attacked in a collateral proceeding for mere irregularities of the clerk in making the order. Mc-Dermott v. Gray, 198 Mo. 282; Charley v. Kelley, 120 Mo. 142; Kane v. McCown, 55 Mo. 199. (4) A judgment rendered by a court of general jurisdiction cannot be collaterally impeached merely because the record is silent as to the acquisition of jurisdiction. Such a judgment is equally conclusive as against collateral attack whether the record recites, or fails to recite, how jurisdiction was acquired. McClanahan v. West, 100 Mo. 320; State ex rel. v. Broadctus, 216 Mo. 345; Adams v. Cowles, 95- Mo. 509.
   WOODSON, J.

This is a suit to quiet title and ejectment for the possession of certain real estate situate in Warren county.

A trial was had on the first count before the court, which resulted in -a finding and judgment for the plaintiff, but upon motion for a new trial, the judgment was set aside and a new trial granted. From the order granting the new trial the plaintiff duly appealed to this court.

The facts are few and undisputed, and as follows:

The plaintiffs, Henry Kunzi, Pauline Krousbein, Adele- Hickman, Annie Buscher, Charles Kunzi and Bernhard Kunzi were the children and are the heirs at law of William Kunzi, deceased, who died intestate October 16, 1906, seized and possessed of the real estate described in the petition.

The defendant, Bettie Hickman, alias Bettie Kunzi, is the alleged widow of William Kunzi, deceased, and the alleged stepmother of the plaintiffs.

The question for determination involves the defendant’s right to dower and homestead in the lands in controversy, and that depends upon the validity of the decree of divorce granted at the April term, 1904, of the circuit court of Warren county, divorcing defendant, Bettie Hickman, from Jesse Hickman, her former husband.

The plaintiffs contend that said decree of divorce was a nullity, -and that the alleged marriage of the defendant to William Kunzi was bigamous and void. The converse of this proposition is contended for by the defendant.

Prom this it is seen that the only and controlling question presented for determination is, whether the defendant was legally divorced from her former husband, Jesse Hickman, to whom, it is admitted, she wan lawfully married on September 2, 1900, in Callaway county.

The facts regarding the divorce proceedings, as disclosed by the record are as follows:

On October 13,1903, defendant, under the name of Bettie Hickman, instituted an action for a divorce in the circuit court for Warren county against one Jesse Hickman. The petition contained the statutory affidavit required in divorce cases but neither the petition nor the affidavit stated any reasons for the issuance of an order of publication. On the date that said petition was filed, to-wit, on October 13!, 1903, a summons was issued by Robert N. Chiles clerk of the circuit court for Warren county, Missouri, directed to the sheriff of Warren county, commanding him to summon Jesse Hickman to appear on the fourth Monday in October, IOC'S, to answer the petition of Bettie Hickman, etc. No service was had by any sheriff on said summons, but on the back thereof appears the following sheriff’s return:

“Executed the within writ in the county of Calla-way State of Missouri on the 16th day of October, 1903. Jesse Hickman not found in my county. James E. Moore, sheriff Callaway county, Missouri.

“P. S. His folks think he is in Iowa or North Dakota. ’ ’

The judge’s docket of the Warren Circuit Court at the October term, 1903, fourth day, October term, under head of return cases contains'the following entry and no other concerning the case of Hickman v. Hickman:

“Judge’s docket of the Warren County Circuit Court at the October term 1903'. Fourth day, October term. Return cases. Attorneys for- plaintiff, C. E. Peers; attorneys for the defendant (no one marked); names of parties in action, Bettie Hickman, plaintiff, versus Jessie Hickman, defendant. Cause of action, divorce. Services had or order made at last term, non est return on summons.”

No orders of any kind were made at the October term, 1903, in said cause. No alias writ- was ordered for the defendant, nor was any showing made to authorize the issuance of an order of publication. No appearance was made by anyone for the defendant, nor did he appear.

On February 19, 1904, there was filed by and with Robert N. Chiles, clerk, an affidavit for an order of publication reading as follows, to-wit:

State of Missouri, County of .Warren.

Now, at this day comes Bettie Hickman, plaintiff in the matter of Bettie Hickman v. Jesse Hickman, and in aid of her petition for divorce, on her oath says, that the said Jesse Hickman is to the best of her knowledge and belief,, a non-resident of the State of Missouri, and that the ordinary process of law cannot be served upon him,’ the said Jesse Hickman, and prays that an order of publication be issued against him, the said Jesse, notifying him of the beginning of this suit, the object and general nature thereof, by the clerk in vacation.

(Signed) Bettie Hickman.

Sworn to before me this 19th day of February, 1904, at my office in Warrenton, Mo.

(Seal) F. A. Ordebjieide,

Notary Public.

My commission expires Feb. 24, 1907.

Upon this alleged affidavit for an order of publication the clerk spread upon his record the following-order of publication as appears by circuit court record book “K” at page “496.”

In the Circuit Court for Warren County, Missouri, Spring Term, 1904. Bettie Hickman, Plaintiff, v. Jesse Hickman, Defendant (Divorce).

Now, here on this 13th day of October, 1903, comes the plaintiff by her attorney before the undersignéd circuit clerk and files her petition verified by affidavit alleging among other things, that defendant had deserted this plaintiff and the defendant has absented himself from his usual place of abode in the State so that the ordinary process of law cannot be served upon him.

It is therefore ordered by the clerk in vacation that said defendant be notified by publication of the commencement of this suit, the object and general nature of which is to obtain a judgment or decree of the circuit court, annulling the bonds of matrimony contracted between plaintiff and defendant as in said petition alleged, and that unless he be and appear at the next term of the circuit court of Warren county, Missouri, to be begun and held in the city of Warrenton, in said county and State, on the third Monday in April, 1904, and on or before the first day of said term, answer to, demur or otherwise plead to plaintiff’s petition, the allegations therein contained will be taken as confessed and judgment will be rendered against him in accordance with the prayer of said petition.

It is further ordered that a copy hereof be published in the Warrenton Herald, a weekly newspaper printed and published in Warren county, Missouri, for four weeks successively, the last insertion to be at least fifteen days before the next term of said court.

Robert N. Chipes, Clerk.

If proof and return of the publication of the order of publication was ever made by the publisher of the Warrenton Herald, it bad disappeared from the files when this cause was tried, and no record of it could be found. But plaintiffs introduced in evidence a copy of the Warrenton Herald, in which said order of publication was published, and a perusal of it will show that it is not a true and correct copy of the order of publication which was spread upon the record and that there are variances between the order of publication as spread upon the record and as published. The order of publication as published in the Warrenton Herald reads as follows:

ORDER OP PUBLICATION.

In the Circuit Court for Warren County, Mo., Spring Term, 1904. Bettie Hickman, Plaintiff, v. Jesse Hickman, Defendant (Divorce).

Now, here on this the 13th day of October, 1903, comes the plaintiff by her attorney, before the undersigned circuit clerk and files her petition verified by affidavit, alleging among other things that defendant has deserted this plaintiff from his usual place of abode in this State so that the ordinary process of law cannot be served upon him.

It is therefore ordered by the clerk in vacation that said defendant be notified by publication of the commencement of this suit, the object and general nature of which is to obtain a judgment or decree of. the circuit court annulling the bonds of matrimony contracted between plaintiff and defendant as in said petition alleged and that unless he be and appear at the next term of the circuit court of Warren county, Mo., to be begun and held in the city of Warrenton, in said county and State, on the third Monday in April, 1904, and on or before the first day of said term answer to, demur or otherwise plead to plaintiff’s petition, the allegations therein contained will be taken as confessed and judgment will be rendered against him in accordance with the prayer of said petition.

It is further ordered that a copy hereof be published in the “Warrenton Herald,” a weekly newspaper printed and published in Warren county, Missouri, for four weeks successively, the last insertipn to be at least fifteen days before the next term of said court.

Robert N. Chiles, Clerk.

State of Missouri, County of Warren, ss.

I, Robert N. Chiles, clerk of the circuit court within and for said county, hereby certify the above and foregoing to be a true copy of the proceedings of our said circuit court on the day and year above written as the same appears of record in my office.

In testimony whereof I have hereunto set my hand and affixed my seal of said court at my office in Warrenton, Mo., this the 19th day of February, 1904.

(Seal) Robert N. Chiles,

Clerk of the Circuit Court.

Neither the order of pnhication as published in the Warrenton Herald, nor the order of publication as spread upon the records in record book “K” at page “496,” follows the affidavit filed by Bettie Hickman on February 19, 3904, because said affidavit predicates the prayer for an order of publication upon the fact that the defendant, Jesse Hickman, is a non-resident of the State of Missouri.

At the April term, 1904, and on the 4th day thereof, an alleged divorce was procured by defendant herein, the record entry thereof appearing in book “K” at page “531” and reading as follows:

DIVORCE.

“Bettie Hickman, Plaintiff, v. Jesse Hickman, Defendant.

Now kere at tkis day tkis cause comes on to ke keard, tke plaintiff appears in person and ky C. E. Peers, ker attorney, and tke defendant being tkree times called comes not but makes default. It appearing to tke court tkat tke defendant was duly summoned by publication thirty days before tke first day of tkis term, as per tke affidavit of tke publisher of tke Warrenton Herald, now kere filed and duly certified, and it further appearing tkat tke plaintiff is tke wronged and injured party and tkat she is a woman of good, moral character, it is therefore ordered by the court and is now adjudged and decreed tkat tke bonds of matrimony heretofore contracted between plaintiff and defendant be annulled, set aside and for naught held, and tkat tke plaintiff be and she is now restored to ker maiden name of Bettie Qualls.

It is further ordered tkat tke costs of tkis proceeding be taxed against tke defendant and tkat execution issue therefor.

The defendant did not appear at any stage of the proceedings, either in person or by attorney.

Thereafter defendant, under the name of Qualls .and on the 14th day of September, 1904, in the county of Warren and State of Missouri, married William Kunzi.

The testimony showed that at the time of her alleged marriage with Kunzi her husband, Hickman, was still living, and that Hickman was also living after the death of Kunzi, and at the time this case was tried.

It is conceded that there was no personal service had upon Jesse Hickman, the defendant in the proceeding for divorce, instituted in the circuit court of Warren county, by Bettie Hickman his wife, the defendant in this case and the only service that is now contended that was had upon him was by publication, and that was had in the manner previously stated.

It is elementary, that where constructive service is resorted to, strict compliance with the statute governing the same must be observed. [Myers v. McRay, 114 Mo. 377; Cummings v. Brown, 181 Mo. 711; Kelley v. Murdagh, 184 Mo. 381; Hinkle v. Lovelace, 204 Mo. 208.]

The question here presented is, does the service before mentioned measure up to the rule just announced? This question requires a consideration of the statute of the State, and the facts of the service as disclosed by this record.

That statute was section 575, Revised Statutes 1899, and is now section 1770, Revised Statutes 1909.

It reads as follows:

“Sec. 1770. In suits in partition, divorce, attachment, suits for the foreclosure of mortgages and deeds of trust, and for the enforcement of mechanics’ liens and all other liens against either real or personal property, and in all actions at law or in equity, which have for their immediate object the enforcement or establishment of any lawful right, claim or demand to or against any real or personal property within the jurisdiction of the court, if the plaintiff or other person for him shall allege in Ms petition, or at the time of filing same, or at any time thereafter shall file ap. affidavit stating, that part or all of the defendants are nonresidents of the State, or is a corporation of another State, kingdom or country, and cannot be served in this State in the manner prescribed in this chapter, or have absconded or absented themselves from their usual place of abode in this State, or that they have concealed themselves so that the ordinary process of law cannot be served upon them, the court in which said suit is brought,.or in vacation the clerk thereof, shall make an order directed to the non-residents or absentees, notifying them of the commencement of the suit, and stating briefly- the object and general nature of the petition, and, in suits in partition, describing the property sought to be partitioned, and requiring such defendant or defendants to appear bn a day to be named therein and answer the petition, or that the petition will be taken as confessed. If in any case there shall not be sufficient time to make publication to the first term, the order shall be made returnable to the next term thereafter, that will allow sufficient time for such publication.”

By reading this section 1770 it will be observed that in divorce suits, where the defendant is a nonresident, the plaintiff must in the petition, or in an affidavit subsequently filed in the case, allege that the defendant is a non-resident .of the State; and upon filing the petition or affidavit stating that fact, the statute then imposes upon the court or clerk thereof in vacation, to make an order directed to the non-resident defendant, notifying him of the commencement of the suit and stating briefly the object and general nature of the petition. Subsequent statutes provide for the publication of the order, which, however, are not involved here.

Now let us examine the facts and see if this statute was complied with in the divorce suit of Hickman v. Hickman.

It is conceded that the petition for divorce, filed in the circuit court of Warren county, by Bettie Hickman v. Jesse Hickman, contained no allegation of non-residence of the defendant or of any other grounds authorized by the statute for the issuance of an order of publication.

The record does show, however, that the clerk of said court did on October 13, 1903, issue a summons for the defendant in said case, directed to the sheriff of Warren county, but in so far as the record shows it was never delivered to the sheriff of that county, but was delivered to the sheriff of Callaway county, who returned it “not found in my county” with the added words, “P. S'. His folks think he is in Iowa or North Dakota. ’ ’

No alias writ was ordered for the defendant, nor was any other order or proceeding made or had in the case until February 19, 1904, when the plaintiff filed in the cause her affidavit of the non-residence of the defendant, heretofore copied in the statement of the case.

Conceding, without deciding, that said affidavit was, under the circumstances, properly filed, nevertheless, in our opinion' it is fatally defective because it failed to state in what court the case was pending, where the defendant should appear or the time when the defendant should appear and defend the cause.

Said statute also requires that the affidavit shall state briefly the object and general nature of the petition.

The only reference made to the petition in the affidavit for the order of publication is found in these words: “Now at this day comes Bettie Hickman, the plaintiff in the matter of Bettie Hickman v. Jesse Hickman, and in aid of her petition for divorce on her oath says, ” that he is a non-resident, etc., . . . and that “the object and general nature thereof, by the clerk in vacation.”

This language cannot be tortured into meaning that the plaintiff therein had brought a suit for divorce against the defendant in the circuit court of Warren county, or that she attempted to state therein “the object and general nature of the petition,” as required by the statute. Prom the language used in the last sentence of the affidavit, just quoted, she must have had some such idea in her mind, but after using the words “the object and general nature thereof,” she broke off the sentence and left it incomplete, by using the words, “by the clerk in vacation.” There is no sense in either of said expressions when read separately, nor in the two when read together as one, as she used them in the affidavit. At any rate, it does not state the object and nature of the suit.

By reading the publication in the case of Hickman v. Hickman, heretofore set out, it will be seen that it does not purport to be based upon tbe affidavit filed in tbe cause on February 19, 1904, but completely ignores tbe same, and is predicated upon tbe petition filed in tbe case of October 13, 1903, which contained no allegation of non-residence of the defendant, or other ground warranting the making or issuance of an order of publication for him. But if it should be conceded that the order of publication was based upon the affidavit filed February '19, 1904, nevertheless, it is void, for the reason that the order of publication recited that the defendant has deserted the plaintiff and has absented himself from his usual place of abode in this State, so that the ordinary process of law cannot be served upon him, whereas said affidavit recites that the defendant, Jesse Hickman, was a non-resident of the State, and for that reason the ordinary process of law could not be served upon him.

Moreover, the constructive service had upon the defendant in that case was defective in this, the notice actually published in the newspaper recited that the “defendant has deserted this plaintiff from his usual place of abode, in-this State, so that the ordinary process of law cannot be served upon him,” whereas, as previously stated, the order made and spread upon the record recites “that defendant has deserted this plaintiff and the defendant has absented himself from his usual place of abode in the State so that the ordinary process of law cannot be served upon him.”

This service is not only not in strict compliance with the statute, as we have repeatedly held it must be, in order to be valid,'but it is no service at all, since the statute was-not complied with in scarcely a single particular.

Counsel for respondents do not contend seriously, if we correctly understand them, that this service was good, but rely upon the general presumption of law .that proper service will be presumed, whenever the judgment of a court of general jurisdiction is assailed collaterally, as here.

While it is a general rule of law that the courts will presume, in a collateral proceeding, that a court of general jurisdiction properly acquired jurisdiction over the parties to the proceedings therein, nevertheless that presumption must yield and give way under the positive evidence disclosed by the record therein, showing that no service whatever was had upon them. Or in other words, the recitals of jurisdiction or of service of process contained in the judgment must be construed in connection with the whole record, and may be overthrown by other recitals in the record of equal dignity and importing equal verity showing that the former recitals are untrue. [Cloud v. Inhabitants of Pierce City, 86 Mo. 357; Stark v. Kirchgraber, 186 Mo. 633, l. c. 647; Feurt v. Castor, 174 Mo. 289, l. c. 303 and 306.]

It is also held in the former case that when service is recited in the judgment, that recital refers to the service shown by other portions of the record.

If we apply this rule to the case of Hickman v. Hickman, then the general recital of jurisdiction or service found or implied in the judgment therein must refer to the order of publication and the publication made in that case, which was wholly defective, and void for the reasons before'stated.

We are therefore, of the opinion that said decree of divorce divorcing Bettie Hickman from Jesse Hickman was absolutely null and void, and consequently that the marriage of the former to William Kunzi was bigamous and void.

The finding and judgment of the circuit court for the plaintiffs in the case at bar was proper, and the order thereof setting aside the judgment and sustaining the motion for a new trial therein was erroneous.

We, therefore, reverse the judgment and remand the cause to the circuit court with directions to reinstate the judgment for the plaintiffs theretofore entered for them.

All concur. Graves, P. J., and Lamm, J., in result.


author: GRAVES, P. J.

text:
    MARTHA E. WALKER and MYRTIE E. MAST, Appellants, v. WILLIAM T. BOHANNAN, JOHN BOHANNAN et al.
    Division One,
    May 31, 1912.
    1. STATUTE OF FRAUDS: Exceptions. Title to real estate should not slumber in oral contracts to convey. A parol contract to convey real estate is an exception which courts of equity have engrafted on the Statute of Frauds and Perjury, requiring all such contracts to be in writing; but they will be allowed only when the very conscience of the court is touched by the facts of the particular case, and a fraud, such as the statute was designed to avoid, would be perpetrated unless the exception were made.
    2. -: -: Proof. The rules to establish a parol contract to convey real estate cover many phases; as, for example: (1) The alleged oral contract must be clear, explicit and definite; (2) it must be proven as pleaded; (3) it cannot be established by conversations either too ancient or too loose or casual; (4) it must be fair and not unconscionable; (5) the proof must be such as to leave no reasonable doubt in the mind of the chancellor that the contract as pleaded was in fact made and fully performed, as far as performance lay in the hands of the parties; (6) the acts constituting performance must be such as to be referable solely to the contract, and, not such as might be referable to some other or a different contract; (7) the contract must be based upon an adequate and legal consideration, so that its performance upon the one hand but not upon the other would bespeak an unconscionable advantage and wrong, demanding in good conscience relief in equity; and (8) proof of a mere disposition to devise by will or convey by deed, by way of gift, or as a reward for services, is not sufficient, but there must be shown a real contract to devise by will or convey by deed, made before the acts of performance relied on were done.

      3.-: Specific Performance of Oral Contract: Not Communicated to Plaintiffs. Testimony that deceased said to plaintiffs’ father (two young women or girls) that if they would come and live with him and take care of him while he lived they should have all his property upon his death, is of little value, if there is no showing that such proposal was communicated to plaintiffs prior to the time they went to the house of deceased to live.
    4. -: -: Contract Pleaded and Proven. Proof that if plaintiffs would come and live with deceased as long as he lived “this place would he theirs” is not proof of the contract alleged that if they would do those things “he would give said plaintiffs all his property.” Neither is testimony that if they would stay with him as long as he lived “what he had left would be theirs.” To obtain specific performance of a parol contract to convey land the contract pleaded must be the contract proven. Proof of a contract to give a farm is not proof of a contract to convey all of one’s property. Nor is proof that he would give what he had left at his death proof of a contract to give all the property he had when the contract was made.
    5. -: -: -: Agreement to Devise. Testimony that deceased said “what property he had he .intended for plaintiffs” but expresses an intention to convey by devise or deed, but does not show a contract to do either.
    6. -: -: -: Referable to Other Matters. Where the blind owner of land made the contract with the father of plaintiffs, one of whom was a young widow and the other a fourteen-year-old girl, and the whole evidence shows that they did nothing about the place which is not referable to their relations to their father, who was himself an invalid, it will not be held that such acts of performance were done solely under a contract with plaintiffs that, if they would move into deceased’s house, with their father, and take care of deceased while he lived, he would give them all his property.
    Appeal from Nodaway Circuit Court. — Eon. W. G. Ellison, Judge.
    Affirmed.

      Cook, Cummins é Dawson and A. F. Earvey for appellants.
    (1) The evidence in this case is clear and positive and amply meets every requirement of the law as to the making and performance of the contract and fully justifies the court in enforcing the contract in suit. Porrister v. Sullivan, 231 Mo. 345; Collins v. Harr el, 219 Mo. 279; Kirk v. Middlebrook, 201 Mo. 291; Berg v. Moreau, 199 Mo. 416; Lynn v. Hockaday, 162 Mo. 125; Alexander v. Alexander, 150 Mo. 594; Hall v. Harris, 145 Mo. 614; Sutton v. Hayden, 62 Mo. 101; Grupton v. Grupton, 47 Mo. 37. (2) The removal of plaintiffs from the Dooley farm, where they lived at the time the contract sued on was made, to the Bohannan farm, and the faithful performance of the contract by plaintiffs, in a manner entirely satisfactory to Tilman C. Bohannan, the other party to the contract, for a period of over six years is sufficient consideration. Berg v. Moreau, 199 Mo. 416; Sutton v. Hayden, 62 Mo. 114; Typewriter Co. v. Realty Co., 220 Mo. 522; Williams v. Jenson, 75 Mo. 681; Lindell v. Rokes, 60 Mo. 249; 6 Am. and Eng. Ency. Law (2 Ed.), 703.

      Shinabargar, Blagg & Ellison for respondents.
    In urging an affirmance of the judgment and decree of the trial court in this case, we place our -reliance on the same cases cited by appellants, together with a few others which are no stronger, but which merely show that the law on this subject announced in the latest decisions of this court, has its foundation in an unbroken line of decisions to the same effect. A more complete list of these recent cases on specific performance of parole contracts would include the following : Porrister v. Sullivan, 231 Mo. 345; Collins v. Harrell, 219 Mo. 279; Wales v. Holden, 209’ Mo. 552; Kirk v. Middlebrook, 201 Mo. 289; Berg v. Moreau, 199 Mo. 416; Russell v. Sharp, 192 Mo. 285; Rosenwald v. Middlebrook, 188 Mo. 58; Grrantham v. Glossett, 182 Mo. 651; Ashbury v. Kirklin, 181 Mo. 658; McKee v. Iligbee, 180 Mo. 263; McElwain v. McElwain, 171 Mo. 244; Kinney v. Murray, 170 Mo. 674; Lynn v. Hockaday, 162 Mo. Ill; Steele v. Steele, 161 Mo. 566; Alexander v. Alexander, 150 Mo. 579; Hall v. Harris, 145 Mo. 614. The Forrister case contains rules applicable to cases in which it is sought to enforce a parole contract in the teeth of the Statute of Frauds. The announcement there is simply a more explicit statement of the doctrine laid down in Kirk v. Middlebrook, 201 Mo. 289,-and quoted with approval in Collins v. Harrell, 219 Mo. 318.
   GRAVES, P. J.

Action for the specific performance of an alleged oral contract to convey land. The petition avers the contract in this language: “That on or about said date Tilman 0. Bohannan, who was then and there blind and unable to see, and who was living alone on said above described lands, and unable to take care of himself, then and there mutually agreed with the plaintiffs that if they would move on his said farm, together with their father, and permit him to reside in their family and render him such care and services in sickness and in health as were necessary, he being blind, until his death, he would give said plaintiffs all his property.” The petition then avers full performance of the contract upon the part of the plaintiffs.

By answer the defendants admitted the ownership of the land involved by Tilman 0. Bohannan in his lifetime, but deny all other allegations of the petition. The trial court found for the defendants, and from such adverse judgment the plaintiffs have appealed. The case calls for a full restme of the evidence.

Tilman C. Bohannan died in November, 1907. The alleged contract was made in April, 1901. For years prior to his death Bohannan had been totally blind, but otherwise was a hale and hearty man for his years. Although blind he could go around without much assistance, and did many things about his little farm of forty-seven acres. His death was the result of a stroke of apoplexy. He had complained of feeling bad for but a few days before his stroke. The care demanded by him, as indicated by the evidence, was much less than is usually the case with blind people, and much less than one would expect. The two turning points in the case are (1) whether the contract as alleged is sustained by the required quantum of proof, and (2) whether the things done by the plaintiffs are referable to this contract, or to another admitted contract which Bohannan had with the father of the plaintiffs.

For three years prior to April, 1901, John Mast, the father of plaintiffs, had lived upon the land in question. Most of the time his wife and the plaintiffs lived with him. In 1900 the wife died, and one daughter married. In the early spring of 1901 the husband of Martha died, and John Mast, with the daughter Myrtie, removed from the Bohannan place to a place where the daughter Martha lived. This was about a month before the alleged April contract. During the prior three years Mast had lived there under a contract to the effect that he was to have the use of the farm and in return therefor was to board Bohannan and in addition pay him fifty dollars per year. Early in April Bohannan sent word to Mast to come over and see him as he wanted to talk to them or him. In response to this request John Mast and his daughter Myrtie, then nearly fourteen years old, went over and a talk was had between John Mast and Mr. Bohannan about coming back to the.Bohannan farm. The girl Myrtie was in an adjoining room. One clear result of this conversation was an agreement by which John Mast was to take the farm upon the same terms as he had occupied it before, i. e., Mast to board Bohannan and pay him fifty dollars per year for the use of the farm. This contract is not controverted. It should be stated here that Boliannan was an uncle of John Mast’s wife, then deceased.

We shall assemble the testimony as to the alleged contract, as it appears from the record.

John Mast said:

“Q. What did he say with reference to these girls and the land? That is what I want to know? A. He said if the girls stayed with him and took care of him as long as he lived, when he was done with it, it should be theirs.

“By the Court: How? A. He said that if the girls stayed with him as long as he lived, and taken care of him; when he was done with it, it should be theirs. This is all I know about it.

“By the Court: Well, I will get him to state it over again, and state it slowly, and don’t say £we.’ Name the people. I will get you to go down and fix your attention on the moment of time that you entered his home. Now tell again what took place. A. Well, we were talking, as I told you before — if I would come back there, just as I was before I went away- — that is, I was paying him fifty dollars a year for the use of the place, and kept him — that is, fed him.”

“By the Court: That is, boarded him? A. Yes, sir; boarded him.

“By the Court: Then what? A. And then he said that, if the girls stayed with him as long as he lived, what was left should be theirs. Now that is just as near, about, as I know how to make it — Myrtie and Martha.”

On the question of performance of the contract this witness said:

“Q. Now after you went back there, you may state to the court what, if anything, these girls, Myrtie Mast and Martha Walker — what they did with reference to the care and attention given to Tilman C. Boliannan? A. Well, they done all the work that was necessary for the women to do about the farm and about the place there — the washing, the cooking and so forth — and waiting on Uncle, you know. Sometimes he would lose things, when he would be out of doors, and he couldn’t find it, of course he couldn’t see.

“Q. You mean by ‘Uncle’ Uncle Tilman C. Bohannan? A. Uncle Bohannan. Yes.

“Q. "What other things did they do, with reference to care and attention? A. They .just give him his care, you know. Of course, you know that they had to wait on him at the table. Anybody knows about that. A blind man can’t help himself at the table.

“By Mr. Blagg, Counsel of Defendants: Wait a minute now. Don’t argue the case. Tell the facts. A. Well, he couldn’t wait on himself at the table, and of course we had to wait on him — me or the girls.

‘■‘Q. State whether or not these girls did that? A.. Yes, sir.

“Q. Now state what else they did for him, if you recall, as to care and attention. A. They waited on him; and the work there, to keep up the place; and all these things, you know; and keep the house in order — is about all, you know, that women can do, I think. They done everything that a woman could do, in regard to—

“Q. Where did Tilman C. Bohannan live, after you went there in April, 1901, up to the time of his death? A. He lived there with I and the girls.

“Q. Continuously? A. Yes, sir.

“Q. State whether or not the care and attention that you have spoken of was given to him continuously from the time you went there in 1901 up until the time of his death? A. Yes, sir.”

John Hughes, who carried the message from Bohannan to the Masts, as to the contract testified to certain admissions of the deceased, thus:

“By the Court: Now tell me the first thing he said. Don’t go and bunch it together, but tell what he said and what you said. A. He asked me if I would go up to where John Mast lived and tell them to come down; that he wanted to see them.

“By the Court: Well, is that all? A. Yes, sir. ...

“Q. Now, you may state to the court whether or not, after going up to inform John Mast that Bohannan wanted to see him, as you have just narrated, you had a conversation with Tilman C. Bohannan about these girls, Myrtie Mast and Martha Walker, had happened to come there ? A. How is that ?

“Q. If you had any conversation with Bohannan, after these people had moved back there the second time — after the Mast people had moved there the second time — if you had any conversation with Bohannan as to how they had happened to move back, and what he had told these girls, if anything, with reference to his land? A. Why, yes, I happened along there in a few days after Mr. Mast’s folks was down to see him, and I don’t know but what I asked him if they was going to come back, and he says: Wes. I told the girls if they would come and stay with me as long as I lived, why, this place would be theirs.’

“By the Court: Go ahead; what place did he refer to? A. Why, the one that he was living on, I suppose.

“By Mr. Blagg, Counsel for Defendant: I object to what he supposed, your honor.

“By the Court: Yes. Did he have any other place? A. Not that I know of.

“By the Court: That is the simple way to get at it. Go on.

“Q. Did you have any other conversation with him at any time with reference to this matter? A. Ño, sir; I don’t know as I did.”

On further examination the witnesses reiterated the statement in this language:

“By the Court: Never mind supposing. Be careful and concentrate your mind on exactly what he said, and tell it as near as you can. A. He told me that he told the girls, if they would come down there and stay with him as long as he lived, the place would be theirs when he was through with it. ’ ’

Jim French testified:

“Q. State to the court whether or not you had any conversation with him in regard to his giving his property to Martha Walker and Myrtie Mast, the plaintiffs in this case? A. I did.

“Q. What was that conversation, as near as you can remember? A. It wasn’t but a short time before he died. I wouldn’t say just what time, but I think it was in October, a year ago. A year ago last October, I think it was. It was while I was gathering corn, anyhow. Pie — he—had a gathering down there, and I went down there, with my wife and family, and we were all sitting in the parlor, and Uncle Tilman was sitting out by the heating stove. It was a little cool, and he was sitting out by the heating stove, in the sitting room, and I went and set down by the side of him and commenced to talk to him, and the subject came up, and we were talking about some life insurance. He said he didn’t have very much to leave anybody, and that he had told the girls, if they would stay with him as long as he lived that what he had left should be theirs.

“Q. How did you happen to tax your mind with this? A. With this?

“Q. Yes. A. Well, this part of it is — that is, would be more apt to come up, because he asked me— I asked him if he had made a will with regard to this, and he said he hadn’t.

“Q. He said he hadn’t? A. He said that he hadn’t.

‘ ‘ Q. All right. Go ahead. A. I asked him why he didn’t make a will, and he said he didn’t want to make. any will, because he said he was blind and couldn’t see. I said that didn’t make any difference. Then he cited me to Uncle Tice Smock. He said he willed away all he had, and now he had nothing; and he wanted to keep his home as long’ as he Jived. Now —then the other people came in from the other room and that is — the last part is all I remember anything about.”

Robert Campbell testified:

“Q. State to the court whether or not you had any conversation with him relative to his giving his property to Myrtie Mast and Martha Walker? A. Well, yes. I was going to Skidmore one day.”

“By the court: Well, when was it?”

“Q. About when? A. About two years ago, I think. I was going up to Skidmore, and stopped in there to get a drink, and he was setting • out in the shade of the house there, and we set down and talked, and he just commenced and told me about what he was going to do with those girls there. He said that the girls — he told the girls if they would stay with him as long as they lived,- and take care of him, what he had was theirs at his death. Now that was .about the amount of his conversation in regard to that. . . .

“By the court: Repeat what he said, again, about the girls. A. Why, he said he told the girls, if they would stay with him as long as he lived and took care of him, what property he had there he intended for them. . . .

“Q. Old Mr. Bohannan was a very communicative fellow about his affairs? A. He seemed to be. Yes.

“Q. Nearly everybody that came along, he told about his property, didn’t he? A. I don’t think he did.'

“Q. He told you, and Hughes, and French, didn’t he? A. Yes, he told me, I know that much.

‘ ‘ Q. Told you all about wbat he intended to do ? A. No. He never told me all about wbat be intended to do. He told me be intended for them girls to have wbat be bad, if they took care of him.”

Thomas Marlin testified:

“Q. State to the court if you bad any conversation with him in regard to Myrtie Mast and Martha Walker caring for him, and wbat they were to receive for it, if anything?

“By the court: And when was it, and where was it?

“Q. And when was it? A. Well, I couldn’t tell you the exact date.

“Q. About when? A. It was somewhere about two years before be died. I was coming by there one day — coming by there. I bad been somewhere below. And be was out, setting out in the shade, in the yard.

‘ ‘ Q. There at bis place ? A. At the place, where be lived. And I never got in bearing distance of him but wbat I spoke to him, and be always knew everybody be was acquainted with by their voice. And be was setting out in the yard, and I hollowed at him, and drove up to the rack there, and be says: ‘Get a drink of water.’ And I did so. He went to the well, and went to pumping some water, and I went out there and got a drink, and then we come around and set down in the shade of the bouse and talked quite a little bit about old times. Well, be made bis home at our bouse for three or four years, off and on, years ago. And it was probably four or five months after John and the girls bad moved back down there — after Jobn and the girls moved back. It was after Martha came back down there. I think she came back there in July, if I ain’t mistaken about the time. And it was a while after she bad come back there. And I asked him if the girls were still going to stay and take care of him, and be said that was the calculation. And be says: ‘I told them, if they would stay here and take care of me while I lived, that they would have what was left of what I had when I passed out. ’

“Q. That is all. Take the witness.” (Witness, continuing): “Well, says I to him then, says I: ‘You ought to fix it so it will go where you want it to go, when you are gone. If you don’t why it will be to fix afterwards.’

“Q. What did he say to that? A. Well, he says: ‘How would you fix it?’ ‘Well,’ says I, ‘if I was going to fix it, I would fix it with a deed. I would deed it to whoever I wanted to have it, and file it with somebody to'hold until you are gone, and that will end it. That is my idea about it.’ Says I: ‘If you don’t, it will get into litigation after you are gone.’ And he said that looked reasonable and right,- and he thought he would; but that was the last of it. That is the last I talked to him about it, and that was probably two years before he died.”

C. C. Hendrix testified:

“Q. Did you have any conversation with him in regard to the plaintiffs, Myrtie Mast and Martha Walker, taking care of him and what compensation they were to receive for it?

“By the court: When and where?

“Q. If so, when and where? A. He spoke one time to me about two years ago. Two years ago in July or August, I think, I lived at that time on the place Mr. Hughes now lives on. We were neighbors. I went there to see Mr. Mast, and he wasn’t at home, and of course I fell into conversation with Mr. Bohannan. We had always been well acquainted. I asked him if he wasn’t lonesome, and if he didn’t get lonesome; and he said: ‘Yes, very much so, some times.’ The folks were away from home that day, I think. I don’t know just where they was. But he finally spoke something about his affairs. He said sometimes he had a notion to sell out and move to town; but be said lie has promised those girls, if they would stay there and take care of him until he was through with what he had, that they would have the remainder of what he had left. That was about all the conversation we had about it. I didn’t ask him any questions, and I didn’t ask him for that at all.”

W. A. Hughes testified:

“Q. Do you remember of having any conversation with him in regard to this land and as to— A. Well, sir, now and then I was with him, and he would up and tell it.

“Q. Now, what would he say to you? A. What I told you was just about what he said to me. Well I told you that he told me that, if the girls would stay with him as long as he lived) why, what he had, why, it would be theirs.

“Q. That is all. A. What he had left. ”

Edward Hughes testified:

“Q. What conversation did you have with him? What did he say and what did you say? A. Well, sir, about all that I recollect of him saying was that he told the girls, if they would stay with him until he died, what he had should be theirs.

“Q. Anything further? A. That is about all. . . .

“Q. Are you married or single? A. Single.

“Q. You are acquainted with Miss Myrtie, are you? A. Yes, sir.

“Q. Uh huh. And he said, now, to you, and all that he said— What is your name ? A. Ed Hughes.

“Q. How? A. Ed Hughes.

“Q. He says, ‘Ed, I told the girls if they would come and live with me, and take care of me, when I die, they might have all I had left? Is that it? A. He told ine that he told the girls, if they would come and take care of him, they could have what he had left.

“Q. Is that all? A. Yes, sir.

<£Q. That is all he said? A. That is about all he said.

££Q. If he said anything else, tell it. A. That is about all he said.”

Mrs. W. A. Hughes testified:

££Q. Did you have any conversation with Tillman Bohannan in regard to how these girls, Myrtie and Martha, happened to be there and what he was going to do, with his land, with reference to them? A. Well, I’ll just tell you: He was down to my place—

“Q. When? A. This last fall, was a year ago— and he was talking about Myrtie going to school and he says: £I told the girls, if they would — Martha and Myrtie — if they would stay there and take care of me while I lived, this place should be theirs.’

££Q. What place did he refer to? A. Why, the forty he lived on.

££Q. Was there anyone else present? A. My daughter was there. It was in my own house.

££Q. What daughter, what is her first name? A. Mary. All the one I have got.”

Mary Hughes testified:

££Q. Have any conversation with him or hear any conversation, in which anything was said about Martha Walker and Myrtie Mast was to have his property? A. Yes, sir.

££Q. What was those conversations? What did he say? What-did Tillman Bohannan say? A. Well, he told me that he told Martha and Myrtie, if they would stay with him as long as he lived, that what he had was theirs, when he was done with it.

££Q. Anything further, did he say, on that subject, that you remember of? A. Not that I remember of. ”

Henry Wl Barrett testified:

££Q. Do you remember the occasion of John Mast and his daughters, Myrtie and Martha Walker, when they moved back to the Bohannan place the last time? A. Tes, sir.

“Q. Now, with reference to that occasion, you may state to the court whether or not at any time yon had any conversation with Tillman Bohannan with respect to his giving his property to the plaintiffs in this case. A. Well, the first time that I ever heard Mr. Bohannan say anything about it was in the latter part of the year 1901. It was soon after that Martha —the oldest girl — her husband died. . I was talking with Mr. Bohannan about it, and I told him in these words: I says: ‘It seems as though Martha is left in kind of a destitute condition.’ ‘Well,’ Uncle Tillman says: ‘It ain’t as bad as it could be.’ He says- ‘ She has always got a home here as long as she wants to stay and,’ he says, ‘as long as I live; and,’ he says, ‘when I die, I know it is my desire,’ he says, ‘my will, that the girls shall have this place.’ Then along in June, 1903, I was plowing corn just across the road from Mr. Bohannan’s place; and along about two o’clock in the afternoon I went across there to get a drink of water, and Uncle Tillman was standing out in front of the house, making a wire hook. I suppose that is what it was.

“By the Court: When was that? A. That was in June, 1903. And I stood there and watched him quite a while, and directly I spoke to him: ‘What are you doing there, Uncle Tillman?’ ‘Well,’ he says, ‘Harry, I am making a wire hook for the garden gate.’ Directly he says: ‘Harry, you don’t see how I done that do you?’ I says, ‘No, I don’t, Uncle Tillman.’ ‘Well,’ he says, ‘neither do I.’ Well, of course that kind o’ roused the laugh between me and him; and then he asked me to come in and take a drink of water and visit awhile with him; which I always did, when I was over there. I got a drink of water, and sat down on the east porch there; and one thing brought on another, and Uncle Tillman went ahead and told me of his history from the time that he lost his eyesight up until this time. And he says: ‘I, of course,’ he says, ‘when my last wife died,’ he says, ‘I was without a home; but,’ he says, ‘Mr. Mast’s folks,’ he says, ‘I write them or sent word to them that, if they would come back here and take care of me, when I died this farm should go to his wife, Adeline.’ Her first name was Adeline.

“By Mr. Blagg, Counsel for Defendants: I object to that and ask that that be stricken out as incompetent and immaterial.

“By the Court: No. Objection overruled.

“By Mr. Blagg, Counsel for Defendants: We accept. ”

“Q. Gro ahead and repeat all the conversation. He told me, he says: ‘ Of course, when Adeline died. I made the same proposition to the girls — that, if they would stay and take care of me, and furnish me a home, that when I die, this place would go to the girls.’ ‘Well,’ I says, ‘Uncle Tillman,’ says, ‘if that is your opinion,’ I says, ‘don’t you know and don’t you believe it is your duty to put that down in black and white — on paper in some form, so that there wall be no doubt about it?’ ‘Well,’ he says, ‘I have always had the belief that I would be warned in plenty of time to make all things straight before I leave this world.’ That is all I ever heard the man say in regard to it. ’ ’

Without objection the defendants, who were the other relatives of the deceased, were permitted to prove several conversations with Bohannan in which he said that he was going to let the law divide his property after he was through with it; that he was not going to make a will or deed; that he knew how he got his property and was going to keep it, and other statements of this general character.

The evidence discloses no special feeling for the plaintiffs, although it is showii that he said they treated him well. It was shown that they did the usual work that women do about a farm and that deceased helped as far as he could. Deceased was on friendly terms with all his relatives so far as the evidence indicates. It should be noted that the evidence fails to disclose whether the talk of Bohannan with' John Mast was communicated to the daughters. The daughter Martha did not come back to Bohannan ?s until July following, because she had to close up her matters on the farm rented by her deceased husband.

The conversations proven by the several witnesses ran through the years from 1901 up to the death of Mr. Bohannan.

The above states the case as strongly for the plaintiffs as the record before us warrants.

I. The .enforcement of contracts of the character here involved is an exception which courts of equity have engrafted upon the Statute of Frauds., The exception is one that is sparingly exercised, and rightfully so. Title to real estate should not slumber in oral contracts to convey.

The very conscience of the court must be. touched by the facts of the particular case before the exception to the statute will be called into play. The Statute of Frauds had its origin -in the dangers which developed in permitting the title to real estate and contracts as to other weighty matters to rest in parol. Courts weighing evidence by the usual rules were constantly enforcing contracts, which were thought to have been proven by false and perjured testimony. The statutes were not only a boon to property interests, but to the courts as well. Not only so, but it removed from society the temptation to acquire property and property rights through fraud and perjury.

With the acquired experience the courts had gained before the passage of the original statutes of frauds and perjuries, they were slow to engraft thereon any exception to the iron-clad rule of the statute. Later, however, it became apparent to courts of conscience that frauds were being perpetrated under the strict letter of the statute.

To obviate these frauds the exceptions to the statute here invoked was adopted by courts of equity, but not without well defined rules of procedure — rules, which like the statute itself, would be a safeguard as against the perpetration of frauds.

The rules cover many phases; i. e.: (1) The alleged oral contract must be clear, explicit and definite; (2) it must be proven as pleaded; (3) such contract cannot be established by conversations either too ancient on the one hand, or too loose or casual upon the other; (4) the alleged oral contract must itself be fair and not unconscionable; (5) the proof of the contract as pleaded must be such as to leave no reasonable doubt in the mind of the chancellor that the contract as alleged, was in fact made and that the full performance, so far as lies in the hands of the parties to perform, has been had; (6) the work constituting performance must be such as is referable solely to the contract sought to be enforced, and not such as might be reasonably referable to some other and different contract; (7) the contract must be one based upon an adequate and legal consideration, so that its performance upon the one hand but not upon the other would bespeak an unconscionable advantage and wrong, demanding in good conscience relief in equity; and (8) proof of mere disposition, to devise by will or convey by deed by way of gift, or as a reward for services, is not sufficient, but there must be shown a real contract to devise by will or convey by deed, made before the acts of performance relied upon were had.

There may be other phases of the rule adhered to by the courts in cases of this character, but the foregoing are clearly within a long line of Missouri cases. The more recent ones are: Forrister v. Sullivan, 231 Mo. 345; Collins v. Harrell, 219 Mo. 279; Wales v. Holden, 209 Mo. 552; Kirk v. Middlebrook, 201 Mo. 245. Other cases of like tenor are found cited and discussed in the foregoing. Suffice it to say that they all indicate that the courts are slow to enforce contracts of the character we have here.

It is only where the very justice of the-thing is so clear, that the refusal of relief would itself amount to a deep seated wrong and fraud upon the party, that courts of equity will act, and as said before this is right. The fickleness of land titles should be averted. The wholesale enforcement of such contracts would bring more absolute wrongs, than the absolute denial of relief in all such cases. It should therefore be with discerning eye and ear that the chancellor appealed to, should proceed. The single purpose should be the prevention of a real fraud, rather than an imaginary one. His decree should protect substance, rather than shadow, and the evidence to support his decree should point to a real and actual fraud as thé outgrowth of a failure to enforce a clear, certain, reasonable and specific contract. By this we mean a contract between the parties, not a contract made for the parties by loose declarations gathered together after death has sealed the lips.

Measured by these rules the plaintiffs’ case must fail, as we sháll undertake to show.

II. Under the rules, the contract pleaded must be 'the contract proven. A case of this kind does not differ from other suits upon contracts. In all suits upon contracts, if the plaintiff fail to prove the contract pleaded, his suit must fail, however equitable and just may be the contract actually proven. It is the old rule that the proof must conform to the pleading. The contract relied upon in this case is “that if they [plaintiffs] would move on his [deceased’s] said farm, together with their father, and permit him to reside in their family and render him [deceased] such care and services in sickness and in health as were necessary, he being blind, until his death, he. would give said plaintiffs all his property.” With the foregoing as the contract, let us, as with a yard stick, measure the evidence.

The evidence of John Mast must be held of little value, because it is not shown that whatever the deceased said to him prior to the actual removal of the Masts from the daughter’s home to the home of deceased was ever communicated to either of the girls. His testimony at most only shows that at the time of the conversation, there was a willingness upon the part of the deceased to enter into such a contract, but it falls far short of showing that the contract was entered into. The young girl was at the home of deceased at the time of this alleged talk, but nothing to show that she was in position to hear the conversation, further than the fact she was in another room of the house at the time.

Passing next to the witness John Hughes, who says that the old gentleman afterward said to him, “I told the girls if they would come and stay with me as long as I lived, why, this place would be theirs. ’ ’ If this admission shows a contract at all, it shows that he had agreed to give them the farm, if they came and stayed with him, but such is not the contract pleaded. The contract pleaded is “he would give said plaintiffs all Ms property.” The contract pleaded covers all property personal, mixed and real. The contract proven by this witness is as to the farm only. Under the rule which requires the specific contract pleaded to be proven the evidence of this witness availeth nothing. If I charge that B. agreed to transfer to me a team, ten cattle and a farm, for ten thousand dollars, such contract is not proven by showing that I had a contract by which he was to transfer me a farm for ten thousand dollars. Suppose the two contracts above suggested were both in writing, and I should bring suit upon the former, would it be sustained upon the introduction in evidence of the latter? We think not. There would be a variance between the contract pleaded and the contract proven, or the contract introduced in evidence,. It is just this particularity that the courts had in mind, when in cases like this they said that the contract proven must be the contract pleaded.

Jim French says the old gentleman said: “If they would stay with him as long as he lived that what he had left should be theirs.” This does not sustain the contract pleaded. That contract was that he would give them ‘ ‘ all his property, ’ ’ and this must be referred to the date of the making of the contract. . In other words if he made a contract to give them “all his property”'if they would come and stay with him, this means all the property he then had or might thereafter acquire, whilst the admission shown by the witness French is that what was left of his property at his death should go to plaintiffs. In the one instance the old gentleman could not in good conscience dispose of his property because it was all pledged at the making of the contract, whilst on the contract proven -his disposition of the property was not hampered, but if any thing was left thereof it belonged to plaintiffs at his death.

Robert Campbell is still more indefinite. The old man'told him that he had told the girls “what property he had there he intended for them.” This but expresses an intention to convey by devise or deed, but does not show a contract to do either.

So too with Thos. Marlin’s testimony. According to this witness the old gentleman said “that they (plaintiffs) would have what was left of what I had when I passed out.” "When the witness suggested that it should be done by deed, the old man said that looked reasonable. But be that as it may, this evidence does not establish the contract pleaded.

The testimony of W. A. Hughes was to like effect.

We could thus go through the evidence of each and every witness, bnt as we have set it out in full we shall not go further. To our mind there is a variance between the contract alleged and the several contracts proven.

III. There is yet another view of this case. Beyond controversy it is shown that the old gentlemen had contracted with the father of the plaintiffs. That under such contract their father was to have the use of the farm and in return therefor was to pay Bohannan fifty dollars per year in cash, and board him. This contract to board him was made in the light of the fact that he was blind. He had boarded him before, and knew full well the obligation he was assuming under the contract. One of the girls was scarcely fourteen years old, and the other a widow without a home. The whole evidence shows that they did nothing about the place which is not referable to their relations with the father. The younger girl went off to school. In fact every act which they did is as reasonably referable to the contract of the father and their relations to him (an invalid himself) as to the alleged contract in suit. In such case the law precludes a specific performance in cases of the character here involved. In such case there is no such undue’ advantage gained under the alleged contract as will demand its enforcement to the end that a fraud would be prevented. We shall not go further. In view of the very recent holdings of this court in the cases cited supra, the plaintiffs failed to advance proof measuring up to the strict legal standard.

This standard should not be lowered. ' Real cases of specific performance of contracts of this kind have been few and far between, and justly so. Title to real estate should remain just where the death of the owner left it, unless the conduct of the owner has been such as to severely prick the conscience of the chancellor. When death has sealed the lips of the one who knows the facts, vague, loose and indefinite proven statements, or alleged statement, should not change the course of property descent.

The judgment below was for the right.parties, and it is affirmed.

All concur, except Valliant, J., absent.