author: ROY, C. PER CURIAM.

text:
    EVA MAY ACORD v. EVELYN BEATY et al., Appellants.
    Division Two,
    June 20, 1912.
    1. PARTITION: Deed: Land Omitted from Description: Notice. X, owning 542 acres of land, made a deed to five grantees in common for life, remainder to their heirs and assigns, hut failed to describe one hundred acres of the tract. The grantees made a voluntary deed of partition, in which they referred to X’s deed, and entered into possession of their tracts, aggregating the whole of the 542 acres. Held, that a grantee by warranty deed from one of these grantees takes with notice, ,and cannot prevail against an heir of that first grantee.
    2. -: Voluntary: Rights of Persons not In Esse. Where life tenants make voluntary partition which is fair and equal when made, and which preserves the rights of parties not in esse, such partition is binding on. the persons not in esse.

    Appeal from. Saline Circuit Court. — Sew. Samuel B. Davis, Judge.
    Reversed-.

      Frank Rigney and Robert M. Reynolds for appellants.
    (1) Parol partition, followed by possession, where all the parties derive title from a common source is valid. Bompart v. Roderman, 24 Mo. 385; Asken v. Barnett, 50 Mo. 506; Nave v. Smith, 96 Mo. 596; Sutton v. Porter, 119 Mo. 100; G-ulick v. Huntley, 144 Mo. 241; Whitsett v. Wamack, 159' Mo. 14; Starr v. Bartz, 219 Mo. 47. Such partition passes the equitable title, and the court will vest the legal title in the parties entitled thereto. Sutton v. Porter, 119 Mo. 100; Gfulick v. Huntley, 144 Mo. 241. (2) Nor does the fact that the estate is one in which there is a contingent remainder, bar the right to a partition, such estates are alienable under law, and are therefore the subjects of partition. Preston v. Brent, 96 Mo. 552; Reinclers v. Kopplemán, 68 Mo. 502; Sikemeir v. G-alvin, 124 Mo. 367. (3) Such partitions binds minors and those under coverture ; in such cases the life tenant represents the remainderman. The only requirement is that the partition, be fair, equitable and just. Jenkins v. Fahey, 73 N. Y. 355; Mead v. Mitchel, 17 N. Y. 210; Sutton v. Portor, 119 Mo. 100; Gulick v. Huntley, 144 Mo. 241; Sparks v. Clay, 185 Mo. 410. 1 Story’s Eq. Jur. (12 Ed.), 656 A.

      Bug gins & Buggins for respondent.
    (1) The partition by .the life tenant does not make title. No title passed by the deed or contract. The parties do not take title by purchase. It is simply an adjustment of the boundaries of such lands as they own as co-tenants and does not confer any new title. Whitsett v. Wamack, 159 Mo. 23; Palmer v. Alexander,, 162 Mo. 131; Snyder v. Elliott, 171 Mo. 363; Sharp v. Stewart, 181 Mo. 529. By the deed the parties lost nothing and acquired nothing except defined boundaries to the land they previously held in common. Whitsett v. Wamack, 159 Mo. 24. (2) The defendants cannot in equity and good conscience compel the plaintiff to accept the land allotted to her father, when the life tenants and remainderman had no legal title to one hundred acres of the real estate which the life tenants attempted to partition. Twenty acres of this land was allotted to plaintiff’s father and he conveyed it by warranty deed fifteen years before he died. It would be inequitable and unjust- to compel plaintiff to bring suits in ejectment to try and recover the twenty acres. The deed or contract in partition did not make title. (3) The first case cited by counsel for defendants, under point one, in our opinion conclusively settles the question adversely to appellant’s contention. Bompart v. Roderman, 24 Mo, 399 ; Elliott v. Delaney, 217 Mo. 29. (4) We respectfully submit to the court that we have carefully examined the authorities cited by appellant’s counsel and we fail to. find any case where a remainderman was held to be bound by a parol partition of the life tenant. All the cases cited and referred to by counsel for appellant referring to the validity of parol partition is where the parties are sui juris. And where the remaindermen or reversioners are held bound, are in suits in partition brought under the statute.
   ROY, C.

This is an ejectment brought in the circuit court of Saline county, August 18, 1905., for an undivided fifth of about 87.% acres of land. There was judgment for plaintiff, and defendants appealed.'

There is no dispute about the facts, which are as follows: On July 7, 1871, Judiah E. Higby, being the owner of five hundred and forty-two acres of land in that county, executed a warranty deed to Hannah Phillips, George A. Phillips, Ellsworth Phillips, Evelyn Phillips (now Beaty, a defendant), and Elmore Phillips (the father of plaintiff).

Said conveyance was during the natural lives of the grantees, the remander to their heirs and assigns forever, except' the interest of the said Hannah Phillips, at whose death her fifth interest was to be divided among her cograntees. By mistake a hundred acres of the land then owned by Higby was omitted from the description. The land actually described by numbers in the deed only amounted to four hundred and forty-two acres. But the deed called for five hundred and forty-two acres, and the grantees at once went into possession under that deed of the whole five hundred and forty-two acres.

On March 27, 1879, the grantees in that deed executed a mutual partition deed of all the land. That deed contained the following recital:

“That whereas, one Judiah E. Higby by deed dated July 7th, 1871, and recorded in Book 18 at page 553, in the office of the recorder of deeds of and for Saline Oonnty, State of Missouri, did convey to the said Hannah Phillips, George A. Phillips, Elmore Phillips, Ellsworth Phillips, and Evelyne Phillips, (now Evelyne Beattie) certain tracts of land being and lying in Saline County, Missouri, and described as follows:” (here followed a description of all the land amounting to 542 acres).

Then followed this language: “Which said conveyance was to the said grantees during their natural lives and to their heirs and assigns forever except the interest of said Hannah Phillips at whose death her one-fifth interest is to be divided between said George Allen Phillips, Elsworth Phillips, Elmore Phillips and Evelyne Phillips, and their heirs, which said deed is here referred to and made a part hereof.”

In that partition Elmore Phillips got an undivided third of a detached sixty acre tract and also ninety acres. Thirty acres of the ninety acres were a part of the land not described in the Higby deed. The defendant Evelyn Beaty (Phillips) got 117.50 acres which were described in the Higby deed. The fairness of that partition is practically conceded, except as to the effect of the fact that thirty acres of the land allotted to Elmore Phillips were omitted from the description in the Higby deed. That partition deed contained covenants of mutual warranty. The parties at once took possession separately of the parcels respectively allotted to them.

On May 29, 1882, Elmore Phillips conveyed the ninety acres allotted to him to Henry O. Sparks by warranty deed for the expressed consideration of $2250.

Elmore Phillips died July 18, 1897, leaving plaintiff, his child, as his only issue. She was born February 8,1882, and was married to her present husband October 4, 1899.

In 1904, plaintiff recovered judgment in ejectment against Edward Staub and others for an undivided fifth of portions of the Higby land which were not allotted to her father or to Evelyn Phillips. On August 14, 1905, plaintiff, by warranty deed conveyed to Edward Staub the undivided fifth of two hundred and fifty acres of the Higby land including the ninety acres, which had been allotted to her father. That deed contained these words, “It being intended herein to convey the entire interest of the said Eva May Acord in and to said real estate.”

The answer prayed for a decree declaring that the title to said omitted hundred acres be declared to have vested in the parties in accordance with the Higby deed.

OPINION.

I. When the partition deed was made in 1879', the parties had no paper title to the omitted hundred acres. Ten years had not elapsed, and they had no title by the Statute of Limitations. They were the owners of it in equity as against the world and no one-, was disputing their right. It was intended to be included in the deed, but was omitted by mistake. The partition deed recited the Higby deed and made it a part of the partition deed. More than that, the partition deed stated that the Higby deed conveyed the hundred acres, and that such conveyance was for life and then to the heirs of the grantees, except as to the share of Hannah Phillips which went on her death to her co-grantees. When Elmore Phillips conveyed to Sparks in 1882, Sparks and all claiming under him were affected with notice of the contents of the partition deed and of the Higby deed and with notice that the Higby deed was intended to convey the omitted hundred acres. Such being the case, the plaintiff, at the death of her father, if she chose to abide by the partition, was the absolute owner, and entitled to the possession of all the land that was allotted to her father in the partition.

No'one would have had any defense to her claim. Her father had only a life estate therein, and he couLd convey no more than he had. His rights were fully set out in the partition deed. Thus we see that the fact that the hundred acres were omitted from the Higby deed cuts not the slightest figure in the case. It also follows that the partition was a fair one to all concerned.

II. in Reinders v. Koppelmann, 68 Mo. l. c. 501, it was held that in a partition suit the parties not in esse are represented by those who hold subject to their rights, and that such persons not in esse are bound by the parties.

That case did not base the ruling on our partition statute, but on the contrary the court said: “Apart from any statute, the English courts had no hesitation in decreeing partition in such cases. In Wills v. Slade, 6 Ves. Ch. 498, it was held by Lord Eldon that ‘it was no objection to a partition that other persons may come in esse and be entitled; for if so, in every case where there is a settled estate with remainder to persons who may come in esse, there never can be a partition.’ In Gaskell v. Gaskell, 6 Sim. Ch. 643, it was held that a tenant for life of an undivided share of an estate, with remainder to his unborn son in tail, may file a bill for partition, and the decree would be binding on the sons when in esse.”

The case of Sparks v. Clay, 185 Mo. l. c. 408, cited and approved Reinders v. Koppelmann, holding that a life tenant in esse is a representative of the remainderman unborn.

Fletcher’s Equity Pleading & Practice, section 33, says: “The doctrine grows out of convenience or necessity in the administration of justice. Especially is it applicable where the persons not before the court are only possible parties, not in esse, and where the interests of all parties in being required a decree which will completely and finally dispose of the subject-matter of the litigation. Such possible parties cannot, as a matter of course, be brought before the court in person; and it would be highly inconvenient and unjust that the rights of all parties in being should be required to await the .possible birth of new claimants until the possibility of such birth has become extinct. If persons in being are before the court who have the same interest, and are equally certain to bring forward the entire merits of the question, and thus give such interests effective protection, the dictates both of convenience and justice require that there should be a complete decree. ’ ’

Story on Equity Pleading, see. 144 et seq., is to the same effect. We may then accept it as a settled doctrine that in a partition by procedure in court, the parties not in esse are represented by those who hold subject to their interest and are bound by the decree.

But it has been suggested that in a voluntary partition a life tenant or tenant in tail or other person holding subject to the interest of the parties not in esse could not bind the parties not in esse, and that sucli partition binds only the interest of the life tenant or others who are in propria persona parties to the partition. The English authorities are a unit in favor of the proposition that where the life tenants make voluntary partition which is fair and equal at the time that it is made it is binding on the persons not in esse. [Thomas v. Gyles, 2 Vern. Ch. 232.] 2 Coke on Littleton, section 170a, says: “It is held that where parceners and their husbands make partition of the lands held in parcenary, if the partition is equal when made it cannot be avoided by the wives or their heirs at any time. The reason is given thus, ‘for the husbands and wives were compelled by law to make partition, and that which they are compelled to do in this case by law, they may do by agreement without process of law. If the annual value of the land be equal at the time of the partition, and after become unequal by any matter subsequent as by surrounding, ill-husbandry, or such like, yet the partition remains good. But if the partition be made by force of the. king’s writ, and judgment thereof given, it shall bind the feme coverts forever, albeit the parts be not of equal annual value; because it is made by the sheriff by the oath of twelve men by authority of law; and the judgment is, that partition shall remain firm and stable forever as hath been said. ’ ’ ’

The same author says, section 173b: “A partition of land in tail between parceners, if it be equal at the time of the partition shall bind the issues in tail forever, albeit the one do alien her part.” And again in section 171a that author states: “But if the partition made between the husbands (pérenter les barons [1]) were thus, that each part at the time of the allotment made was of equal yearly value, then it cannot after-wards be defeated in such cases.”'

And in section 166a he says: “If coparceners make partition, at full age and unmarried, and of sane memory, of lands in fee simple, it is good and firm forever, albeit the values be unequal; but if it be lands entailed, or if any of the parceners be of non sane memorie, it shall bind the parties themselves, but not their issues unless it be equal; or if any be covert, it shall bind the husband, but not the wife or her heirs; or if any be within age, it shall not bind the infant. ’ ’

Allnat on Partition, page 31, says: “Partition between parceners in tail, if it be fair and equal at the time, shall bind the issue in tail forever, although the one alien her part. But if the partition be unequal, then, although it shall conclude the tenants in tail themselves during their lives, yet the issue of the parcener wlao has.the lesser part in value allotted to her, may avoid it after her death.”

Thus we see that the English courts hold that the only difference between a voluntary partition and one made by a suit in court is that in order to bind persons not in esse the voluntary partition must have been equal at the time it was made. If it was equal when made, it is binding upon persons not in esse. ■ They also recognize the doctrine that the parties, can do by a voluntary partition what the law would require them to do by a suit in court. See also 21 Am. & Eng. Ency. Law, p. 1132.

30 Cyc. 159 states the English doctrine as'above set out and then states that the courts of the United States so far as they have spoken on the subject dissent from the English decisions. The only American case cited is Buxton v. Bowen, 2 Woodb. & M. 365.

Freeman on Cotenancy & Partition, section 416, says that voluntary partition by tenants in tail does not bind the heir in tail. That author cites only Buxton v. Bowen, supra,

21 Am. & Eng. Ency. Law, page 1134, says that in England a tenant in tail is held to be bound, while in the United States it is otherwise, citing Buxton v. Bowen, supra, and Buxton v. Uxbridge, 10 Met. 87. It is thus seen that the only cases in the United States in support of the doctrine that the heir in tail is not bound are those two Buxton cases. Those two cases arose , out of the same will. Benjamin Buxton devised one-half of his land and personalty to his son James in fee and the other half to his son John in tail. John and James executed a mutual partition deed dividing the land between themselves. After the partition, John conveyed the land allotted to him in fee to a third party. After John’s death, his son brought suit against the party holding under the deed made by his father, for an undivided half'of the land allotted to John. That case was known as Buxton v. Bowen, supra, and was decided by the - United States Circuit Court of the first circuit.

There are two reasons why that case should not be regarded as authority on the question here under consideration. The first is‘that it involved only land allotted to the father of the plaintiff. Under the doctrine of the English court holding that a partition bound the heir in tail, the plaintiff in that case would have been entitled to the whole of the land sued for and certainly he would be entitled to the half which he sued for. It seems to us that the discussion of the question as to whether that partition was binding on the heir in tail was entirely outside of the issues in that case.

In the second place, the court based its ruling almost entirely on the fact that James and John when they made a partition did not hold by equal rights, one owned in fee simple and the other in fee tail, and the case was made to turn on that distinction. The court did not discuss the authorities on the question here involved. The ease of Buxton v. Uxbridge was also for a part of the land allotted to John, the father of plaintiff. That case does cite Coke on Littleton, sections 170a, 173b.

It will be found by a comparison of the quotations from Coke on Littleton heretofore made that they do not support the holding in the Buxton case, but are diametrically the opposite.

We conclude that.the English doctrine is right, and hold that the voluntary partition, having been fair and equal when made, is binding on the plaintiff herein who was not in esse at the time of the partition.

Freeman on Cot. & Part. (2 Ed.), section 482, says: “But in order to bind the interests of persons not in esse the proceedings must be adapted to that purpose. If no mention is made of such interests, and the pleadings and judgment are founded upon the theory that the persons in being before the court are the only persons having any estates or interests in the property, then no interests are affected except those vested in the parties before the court. Whenever it is sought to bind the interests of persons not then in being, the judgment must be one which ‘ provides for and protects such interests by substituting the fund derived from the sale of this land in place of the land, and preserving it to the extent necessary to satisfy such interests as they arise.’ ”

In this particular deed the rights of ‘the parties not in esse were recited in the deed, and their rights were preserved, the corpus of the property being also preserved, so that it was impossible for the plaintiff to be injured by the partition.

The claim is made that because Elmore Phillips, the plaintiff’s father, got more than his proportion of the hundred acres, the description of which was omitted from the Higby deed, the partition as to this plaintiff should not be held binding. It is said that the omission of the description of that hundred acres from the deed renders the title thereto bad. In answer to that, we say that every fact necessary to make the title good by adverse possession appears in the record.

At the date of the ITigby deed the grantor therein was sui juris, and placed the grantees in that deed in possession of the whole 520' acres, and adverse possession thereunder has been held ever since. Legal title by adverse possession ripened in July, 1881, twenty-four years before this suit was begun.

In Scannell v. Soda Fount. Co., 161 Mo. 606, l. c. 618, it was held that a title acquired by adverse possession under our statute is in every respect as good for purposes of attack or defense as a title by deeds running back to the government. That was a suit by the vendor to coinpel specific performance of a contract for the sale of real estate. The contract provided in effect that it should not be binding “if any defect should he found in the title.” The court said (l. c. 619), “A court of equity would not force upon, a, defendant a title in which there was any real defect but it will not hesitate to require him to stand up to his contract when the title offered him is good beyond all reasonable apprehension.”

In Greffet v. Wilman, 114 Mo. l. c. 121, for specific performance, the court, speaking of a title by adverse possession against the heirs of a deceased party, said: “He has now been dead about forty years, and no such relative has turned up. The plaintiff has been in possession of the premises for more than fifteen years, and we do not think the defendant had the slightest ground to .apprehend any annoyance whatever from any person claiming title to any interest in the land through relatives of Henry McKee, deceased.”

In addition to what is said above, it is said in 30 Cyc. 167, that where by statute or otherwise a warranty is implied in partition it is not broken until eviction, and Freeman on Cotenancy and Partition, section 533, holds.the same. No one holding under the partition deed in this case has ever been evicted under a claim adverse to that title and no such claim has ever been made.

The plaintiff seems to have labored under a mistake as to her rights in the lands allotted to her father, but that is her misfortune and these appellants cannot be made to suffer therefor. She could have recovered all the land allotted to her father. The defendant Eyelyn Beaty could not recover any of it, for she had parted with all her right to it in the partition deed. We do not think it should be overlooked that in the deed made by plaintiff to Staub, she not only conveyed an undivided fifth of the land, but stated in the deed that it was intended to convey all her interest in the land. That certainly meant that if she had more than a fifth it should pass by the deed. It could not have been meant for any purpose except to pass -whatever interest she got by the partition. If anybody is to suffer for her'failure to insist upon her fall and absolute right to all the property allotted to her father, she must bear the loss and cannot shift that loss onto these defendants.

The judgment is reversed.

Blair, C., dissents.

PER CURIAM.

The foregoing opinion of Roy, G., is adopted as .the ojunion of the- court.

All the

judges concur.


source: Caselaw Access Project

author: KENNISH, J.

license: Public Domain

text:
    HENRY C. BROWN v. C. H. BARBER, Appellant.
    Division Two,
    June 20, 1912.
    1. MORTGAGEE: Agreement that Junior Lien Shall Become Prior Lien. The mortgagee in a first and second deed of trust and the mortgagee in a third deed of trust; upon a sufBcient consideration, may make an' agreement, binding between themselves, by which the second deed of trust is given- priority over the first deed of trust.
    2. -: —-: Facts Constituting Agreement. So that where plaintiff was the mortgagee in two deeds of trust, both made at the same time, one given to secure a five-hundred dollar note due in five years, and ■ another given to secure a five-hundred dollar note due in four years, referring to the other as “a prior deed of trust of $500 on said property” but recorded one minute before the other, and defendant was the owner of á third deed of trust for $800; and upon default in the payment of interest on the two notes for $500, the property was advertised for sale under the deed of trust securing the five-year note, and at the place of sale plaintiff announced to defendant that he would bid eleven or twelve hundred dollars for the property, •and thereupon defendant requested him not to do so, and agreed that, if he would not do so, he himself would bid a sufficient amount to pay the claim then in process of foreclosure and would pay the remaining five-hundred dollar note, and this proposition • was accepted by plaintiff, and the sale proceeded upon the understanding of both that it was made subject to tbe remaining deed' of trust and defendant became the purchaser for the amount 'agreed upon with plaintiff, said agreement was based upon a valid and sufficient consideration, and said second deed of trust became a superior lien to the first; and when plaintiff thereafter, upon defendant’s failure to keep said agreement, had said second deed of trust foreclosed and became the purchaser at the sale, he took the title.
    3. - :-: — : -: Mistaken Belief as to Priority of Deeds of Trust. Nor does the fact that plaintiff and defendant, in making said agreement, were acting under a misapprehension as to whether the deed of trust under which the foreclosure sale was being made or the other, was a prior lien, preclude the right of plaintiff to equitable relief. A mistaken belief'as to the interest conveyed by a sale of real estate will alone furnish sufficient ground for relief in a court of equity.
    4. -: Foreclosure: Application of Proceeds. Where there ' are three deeds of trust on property sold at a foreclosure sale .•■under the first, the proceeds in excess of the debt and costs secured .thereby are to be applied to the second, and none of it to the third until the second is fully discharged.-
    Appeal from Jackson Circuit Court. — Hon. J. H. Slover, Judge.
    Affirmed.

      McCune, Harding, Broion & Murphy and Wash Adams for appellant.
    (1) The deed of. trust through which appellant claims title was a first deed of trust, and as such had priority over the deed of trust under which respondent claimed title in his petition. Young v. Comm. Co., 158 Mo. 410; Truesdale v. Brennan, 153 Mo. 600; McDonald y. Quick, 139 Mo. 498; Rogers v. Tucker, 94 Mo. 346. (2) The sale under the first deed of'trust cut out all subsequent encumbrances, including' the deed of trust through which respondent in his petition claimed title, and the trustee’s deed to appellant vested the title to the property in appellant free from the lien of the junior deed of trust. Stewart v. Perkins, 110 Mo. 668; Plum v. Mfg*. Co., 89 Mo. 162. (3) There was no credible evidence that appellant agreed to pay the $500 note secured by the second deed of trust, or that he vas to purchase the property subject to said second deed of trust. Cornett v. Bertlesmann, 61 Mo. 127; Paris v. Haley, 61 Mo. 459; Trues-dale v. Brennan, 153 Mo. 605. (4) But even if there were such evidence it could not affect the unencumbered title acquired by appellant at the trustee’s sale undei the first deed of trust, because: (a) There was no consideration for any such agreement, (b) Being an agreement to pay the debt of another, or to cut down a.n unencumbered estate to an encumbered one, it was within the Statute of Frauds, and, therefore, not being in writing, was void, (c) Such evidence tended to-vary and contradict the written recitals in the second deed of trust, which make the deed of trust through which appellant claims title a first lien on the property and therefore was not admissible. Benson v. Harrison, 39 Mo. 304; Houck v. Frisbie, 66 Mo. App. 19. (d) If there was such an agreement and if it had a consideration, plaintiff’s remedy was at law in an action for the breach thereof. Benson v. Harrison, 39 Mo. 303; Bridge v. Tierman, 36 Mo. 439; Moberly v. Trenton, 181 Mo. 637.

      John M. Cleary and F. C. Downey for respondent.
    (1) The appeal to the equitable jurisdiction of the court was necessary in this case. The records did not disclose the flaw in the Barber title, while it did disclose the facts upon which Barber relies for the superiority of his title. Parol evidence was essential to show the superiority of Brown’s title, as against or in explanation of the recitals of the records. Pomeroy’s Eq. Jur. (3 Ed.), sec. 1399; Clark v. Ins. Co., 52 Mo. 276; Verdin v. St. Louis, 131 Mo. 112; Mason v. Beach, 87 Mo. 344; Gardner v. Terry, 99 Mo. 527; Turner v. Hunter, 225 Mo. 71; Jewett v. Boardman, 181 Mo. 656; Harrington v. Utterback, 57 Mo. 519. (2) Tbe deed of trust through which appellant claims title was not a first deed of trust. Appellant bought the property subject to the deed of trust through which respondent afterwards obtained title, (a) Purchase money mortgages executed by the same grantor to the same grantee as a part of one transaction and filed for record at the same, time, are equal in lien. Winn v. Inv. Co., 125 Mo. 542; Linville v. Savage, 58 Mo. 248; Biddle v. George, 58 N. H. 25; Gansen v. Tomlinson, 23 N. J. Eq. 405; Howard v. Chase, 104 Mass. 249; Green v. Warwick, 64 N. Y. 220; Jones on Mortgages (4 Ed.), sec. 607a. (b) One of two mortgages equal in lien may, by parol agreement, be subordinated to the other and such agreement will not be within the Statute of Frauds. Loewen v. Forsee, 137 Mo. 40; Linville v. Savage, 58 Mo. 248; Truesdale v. Brennan, 153 Mo. 604; Jones on Mortgages (4 Ed.), secs. 607-8; Vredenburg v. Bur-net, 31 N. J. Eq. 229; 2 Pomeroy Eq. Jur. (3 Ed.), see. 626; McCaslin v. Mfg. Co., 58 N. E. 67; Rogers • v. Tucker, 94 Mo. 350; Ins. Co. v. White, 106 111. 67. (c) One taking with notice of an equity takes subject to that equity. Pomeroy’s Eq. Jur. (3 Ed.), secs. 688, 689 and 730; Burch v. Ellames, 2 Anstruthers Eng. Ex. Rep. 427; Jennings v. Moore, 2 Vern. 609; Committee v. Lebus, 77 S. W. 180; Dunman v. Coleman, 67 Tex. 390; Freeman v. Moffitt, 119 Mo. 280; Abbe v. Justus, 60 Mo. App. 300; Eck v. Taylor, 58 Mo. 235. (3) The sale did not cut out the encumbrance created by the deed of trust through which respondent claims title. The mistake in the order of filing the instruments for record or in the selection of the deed of trust to be first foreclosed, gave the appellant no superior title. Mistake is a well settled ground for the interposition of equity. 2 Pomeroy’s Eq. Jur. (3 Ed.), secs. 838, 849. (4) There was overwhelming evidence that appellant agreed to pay the interest and later on the principal of the note, through which respondent subsequently obtained title to the property. This evidence also proved conclusively that appellant believed he was buying the property under a second deed of trust. (5) The consideration for such an agreement was that respondent was not to bid at the sale and would accept interest on the other note waiving the default in that regard and thereby, as far as respondent was concerned permit appellant to buy the property at an amount only sufficient to pay the debt then under foreclosure. This agreement was fully executed by respondent. (6) The case was presented to the trial court upon the theory that it belonged in equity and it will be so considered upon appeal. Harwood v. Toms, 130 Mo. 225; Roselle v. Beckemeir, 134 Mo. 380; Kosbuba v. Moeller, 137 Mo. 161; Laughlin v. Gerardi, 67 Mo. App. 372. (7) Upon appeal from the decree of a chancellor the fact that the trial court is in closer touch with the local conditions and with the witnesses, will, where there is conflict of evidence, cause the appellate court to respect the findings of the chancellor in matters of fact. McKenzie v. Donnell, 151 Mo. 460; Barrett v. Davis, 104 Mo. 563. And in such case the appellate court is not disposed to disturb the result reached. Jennings v. Todd, 118 Mo. 309. (8) If the judgment is right and sustained by the evidence, the theory upon which the result is reached, even if erroneous, will not be ground for reversal. R. S. 1909, sec. 2082; Gillespie v. Hendrew, 98 Mo. App. 622. (a) If the decree is for the right party and agreeable to equity, the case will not be reversed. Taylor v. Laremore, 19 Mo. App. 445; Coquard v. Pendergast, 35 Mo. App. 237; Allesheimer v. Mfg. Co., 44 Mo. App. 172.
   KENNISH, J.

This is an action to quiet title, brought in the circuit court of Jackson county. The real estate in controversy- is residence property situate in. Kansas City and of the value of about $1500. The real parties in interest are the respondent, Harry C. Brown, plaintiff below, and appellant, C. H. Barber, one of the defendants against whom the suit was brought. The other defendants were occupying the property as tenants and are merely nominal parties to the suit. The case was tried by the court at the October term, 1907, and a decree entered in favor of the plaintiff, from which the defendant Barber alone appealed.

The facts are substantially as follows:

On the 30th day of September, 1902, Brown was the owner of the property in controversy, and on that day conveyed the same to one Hurgig for the consideration of $1450. In payment of the purchase price the vendee executed to Brown three notes, two for $500 each, and one for $450. One of the notes for $500 was due in five years from date and was secured by a deed of trust on the property conveyed. The other note for $500, due in four years, and the note for $450, maturing first, were secured by another deed of trust on the same property. The note for $450 was paid before the facts involved in this suit arose, and therefore will not receive further notice.- Hursig afterwards conveyed the property and received for his equity therein.a note for $800, secured by a third deed of trust on the property conveyed, and that note and the deed of trust securing it were sold and assigned to defendant Barber for the consideration of $500, and were held and owned by him at the time of the foreclosure sale hereinafter mentioned. The first two'deeds-of trust above described were executed at the same time and as one transaction, but-the deed securing-the note for $500 due in four years, by recitals therein, referred to the other as “a prior deed of trust of $500 on said .property,” and therefore we shall refer to the latter as the first deed of trust and to the former as the second. The two deeds were filed for record in the office of the recorder together, but the second was marked filed one minute before the first. Both notes and trust deeds remained the property of Brown, and on the 6th day of July, 1906, default having been made in the payment of the interest on each note, Brown, in accordance with the terms of the deed, sold the property under the first trust deed. Brown and witness Peltzer, the latter a real estate man whom Brown had requested to' accompany him to the sale and advise him, and the defendant Barber, were present at the sale. All of them agree in their testimony that immediately before the sale the subject of Brown’s claim against the property and also that of Barber were discussed, but they disagree as to what was said and as to the arrangement alleged to have been made. The testimony of Brown and Peltzer tended to prove that they talked with Barber concerning the sale about to be made, on the assumption and with the understanding that the property was to be sold subject to the lien of the deed of trust which had been first placed of record; that Brown desired to purchase the property and intended to bid therefor the amount of $1100 or $1200, and so informed Barber; that Barber said Brown could not get the property for that sum, as he would have to bid higher in order to protect his claim under the third deed of trust; that thereupon an arrangement was made between Barber and Brown by which the latter was not to bid above the amount of his claim under the deed then being foreclosed, and that Barber was to pay the overdue interest on the other note that day and would pay off the note soon thereafter; that Barber purchased the property at the sale, in accordance with the arrangement made, but that he refused to pay the interest or principal of the other note and claimed that he held absolute title to the property, free from the lien of Brown’s remaining trust deed. Barber denied that any arrangement was entered into as testified to by Brown and Peltzer, and further testified that he purchased the property knowing that it was being sold under the first deed of trust and that by the trustee’s deed he became the owner of the absolute title to the property. When Barber asserted title and denied that Brown had any right or interest in the property, Brown foreclosed under the second trust deed, became the purchaser at the sale and brought this suit against Barber and the tenants occupying the property as above stated.

The court made a written finding of facts. That finding and the judgment and decree entered thereon are as follows:

“And now on the 28th day of March, A. D. 1908, being a day of the regular January, A. D. 1908, term of this court, this cause comes on regularly for final determination' and the court having considered the pleadings and the evidence and having heard and considered the arguments of counsel, finds:
“1. That the defendants Eugene Sigers and Mary E. Sigers have no right of possession of, or right, title or interest in or to lot sixteen, Elder’s Addition to Kansas City, Missouri, as against the plaintiff Harry C. Brown, or as against the defendant C. H. Barber.
“2. Tfiat Charlotte Hursig purchased the said premises from plaintiff on or about September 30, 1902, and on said date she, together with her husband, made, executed and delivered to II. M. Brown (wife of Harry C. Brown) as part of the purchase price, their three promissory notes as follows: One for five hundred dollars due five years after date; one for five hundred dollars due in four years after date; and one for four hundred and fifty dollars due in monthly installments of fifteen dollars each. The note last described had been paid off and discharged in full prior to the several foreclosure suits referred to in the pleadings. That said notes were made to H. M. Brown merely as a matter of convenience, H. 0. Brown being the real party in interest.
“3. That to secure said promissory notes said Charlotte Hursig and husband executed two deeds of trust, the one securing the five-year note only, the other securing the four-year five-hundred dollar note and the installment note. These deeds are identical in form excepting, only:
“(a) In that portion of the latter deed providing for the maintenance of insurance it is provided that $800 insurance shall be maintained and such insurance is to be constantly assigned to ‘-first mortgagee on property.’
“(b) In that portion of the same deed specifying what shall be considered a default, there is interlined the following: ‘or in any agreement made in a prior deed of trust for five hundred dollars on said property. ’
‘ ‘ The latter deed of trust was filed for record one minute prior- to the former, and appears recorded at page 351 of the book of records in which both deeds are recorded, the deed securing the five-year note appearing at page 352, while the deed of conveyance from plaintiff to Hursig is filed one minute later than the last trust deed.
“At all times prior to the making of the first foreclosure sale herein mentioned, the plaintiff was the owner of all of said notes and of the deeds of trust .securing payment thereof; and at the making of the second foreclosure sale, plaintiff was the owner of the note then remaining unpaid and of the deed of trust securing the same.
“4. That the installment note for four hundred and fifty dollars was paid in full, but thereafter default was made in the payment of interest on both of said five-hundred dollar notes, and on or about June 6, 1906, the trustee, at the request of the plaintiff, proceeded to sell said real estate under one of said deeds of trust, the notice of sale specifying the deed which secured the five-year note, being the same deed recorded second, but not containing the recitation in finding three specified. In the meantime the defendant Barber became the' owner of a third deed of trust upon the property securing a note of eight hundred dollars, and he appeared at the time and place set for the making of the sale above referred to intending to bid upon the property to protect his interest. Before the commencement of the sale he inquired of the plaintiff and of one Theodore C. Peltzer the amount necessary to pay plaintiff’s claim and was informed of the amount, and further was informed that there was outstanding and in full force and effect a deed of trust securing another indebtedness of five hundred dollars; and that the purchaser at the sale about to be made would buy subject to such outstanding deed and the indebtedness secured thereby. The plaintiff’ also informed Barber he (plaintiff) was prepared to bid eleven or twelve hundred dollars on the property, which Barber requested plaintiff not to do, and he, Barber, there and then proposed to plaintiff that, if plaintiff would not so bid, he, Barber, would bid in the property for a sum sufficient to pay Brown’s claim then in process of foreclosure by sale and would pay the defaulted interest on the remaining five-hundred dollar note, and, ultimately, would pay off and discharge said remaining five-hundred dollar note. This proposition was accepted by Brown and the sale was proceeded with upon the understanding of Brown and Barber .that it was made subject to the remaining deed of trust, and.Barber became the purchaser for the amount agreed upon with Brown. Immediately after the sale Barber requested Brown to go to his (Barber’s) office and he would pay all unpaid interest on the remaining note.
“5. Barber refused afterwards to pay the interest on the remaining five-hundred dollar note and refused to pay the note itself or any part thereof, claiming that an examination of the records disclosed that the deed securing the note still held by Brown was a second deed of trust, junior and inferior to the lien of that which had been foreclosed, and under foreclosure of which he had purchased said real estate and therefore all rights under such alleged junior deed had been foreclosed and cut off, and so claiming, Barber has, ever since, refused to pay said note or any part thereof or any interest thereon.
‘ ‘ 6'. That because of the refusal of Barber to pay said note Brown caused a sale to be made under the remaining deed of trust at which Barber appeared and warned all proposed bidders that he was the owner of the property and that no title would pass to a purchaser at said sale. The sale was proceeded with, however, and the plaintiff became the purchaser of the property for the sum of fifty dollars, and thereafter, by virtue of the deed executed by the trustee, entered into possession of the property.
“The court finds that the defendant Barber undertook and agreed for a valid and sufficient consideration to. pay the unpaid five-hundred dollar note above referred to; that the sale at which Barber purchased was made subject to the deed of trust securing the said unpaid note, to the knowledge and with the consent of Barber, and that Brown, upon the refusal of Barber to pay said note, was equitably entitled to enforce such security; but that on equitable considerations, the defendant Barber should be permitted to pay said note with all unpaid interest thereon, and the costs of the sale at which Brown purchased, if he (Barber) shall determine so to do.
“It is therefore considered, adjudged, ordered and decreed by the court that if within sixty days from this date, the defendant, C. II. Barber, ■ shall pay or cause to be paid to the plaintiff or to the clerk of this court for his benefit, the principal of said five-hundred dollar promissory note, together with all unpaid interest thereon according to the tenor and effect of said note, and shall pay also the cost and expenses of the sale at which Brown purchased, then and immediately upon, the making of such payment, the plaintiff or his attorney shall acknowledge the same by an entry upon the decree of this court and thereupon the title in and to said lot sixteen in Elder’s Addition to Kansas City, Missouri, shall become and be forever quieted in said C. II. Barber as against all other parties to this suit; and. such other parties hereto and all persons claiming or to claim by, through or under them or any of them since the commencement of this action, shall be barred and forever foreclosed of and from any interest in and to said real estate and the appurtenances; but if said C. H. Barber shall fail for sixty days from this date to make such payment then the title of said plaintiff in and to such real estate shall be and the same hereby is forever quieted in said plaintiff as against the defendants and each of them; and said defendants and each of them, and all persons claiming or to claim by, through or under said defendants or any of them since the commencement of this action, shall be and they hereby are and each of them is debarred and forever foreclosed from any interest whatsoever in or to said real estate and shall be and are strictly enjoined from in anywise claiming or setting up any right, title or interest or possession against the plaintiff or those claiming under him.”

We are of the opinion that the foregoing finding of facts made by the learned chancellor is sustained by the record and that the judgment and decree'is in accord with the principles of equity.

■ -The theory upon which plaintiff based his right to recover, as appears from Ms petition, was that the second deed of trust remained a valid encumbrance on the property after the trustee’s sale at which Barber became the purchaser, and that by the foreclosure of the second trust deed and the trustee’s deed to plaintiff as purchaser, he acquired a good and valid title to the property in controversy. By the defendant’s answer facts were stated which showed that the first trust deed, through which defendant claimed, was recognized by the parties, at the time the deeds were executed, as a prior lien to that of the second trust deed; under which plaintiff claimed, and that the sale thereunder and purchase by the defendant vested-in him the full title and divested plaintiff of any right or' interest under the- second deed of trust. By his reply plaintiff pleaded facts to the effect that-immediately before the sale under the first trust' deed an understanding and agreement was had and entered into by plaintiff and defendant as heretofore set out in the statement of facts, and that by reason thereof the sec-' ond deed remained a valid lien on the property,' after the sale at which Barber became the purchaser; and that consequently when a sale was thereafter ■ made under the second trust deed, plaintiff, being the pur-, chaser, acquired title as set forth in the petition.

It is entirely competent for the parties in interest, upon a sufficient consideration, to make an agreement by which a junior mortgage on real estate may be given priority over a superior encumbrance'. [27 Cyc. 1169 and cases cited; Linville v. Savage, 58 Mo. 248; Loewen v. Forsee, 137 Mo. 29; Truesdale v. Brennan, 153 Mo. 600.]

In 27 Cyc., supra, the rule is stated as follows: “The lien of a senior mortgage will be subordinated to that of a junior encumbrance, where an agreement to that effect is made between the parties to the first mortgage, or between the two mortgagees. It is not necessary that the second'mortgagee should be directly a party to such an arrangement; .he may take advantage of a bargain of this kind made for his benefit by the mortgagor and the first mortgagee. But the mortgagee, whose lien is to' be postponed must of course be a party to the agreement; he cannot be affected by a contract of which he was ignorant or to which he did not assent.”

■ ■ It logically follows from the foregoing that the parties interested may make a valid agreement, binding at least between themselves, that a foreclosure sale under, a prior lien may be made subject to a junior lien and that the latter shall remain a lien on the property after a sale and conveyance of title ■ under the former. - ■

•' The fact that the parties were acting under a misapprehension as to the priority of the trust deeds would not preclude the right of the plaintiff 'to equitable relief. It has been decided in many cases that a mis; taken belief as to the interest conveyed by a sale of real estate may alone' furnish sufficient- ground for relief in a court of equity. [Clark v. Carter, 234 Mo. 90; Chrisman v. Linderman, 202 Mo. 605; Griffith v. Townley, 69 Mo. 13.] Brown and Barber were doubtless acting under the belief that the sale at which Barber purchased was being made under a second encumbrance and subject to a first, but notwithstanding that misapprehension Brown had intended to purchase the property at such sale, at a price not to exceed $1200, and, had he been permitted to do so or if the property had been sold to another at a higher price, all of the proceeds in excess of $5.6L67, the amount then, due, would have been properly applied upon Brown’s claim secured by the second deed of trust and not upon that of Barber, under the third. By the arrangement made by which Brown refrained from bidding beyond the amount of Ms claim under the first trust deed, there was no surplus to apply on his debt secured by the second, and Barber acquired property worth at least $1500 for the sum of $563. After entering into that agreement, which was wholly executed so far as Brown was concerned, it would be most inequitable to permit Barber to take the title to the property, free from the burden which both parties understood it should bear under the arrangement made and by which Barber profited as a purchaser at the sale.

The court correctly held that by reason of the understanding and agreement of the parties the second trust deed remained a lien on the property after the conveyance to the defendant by the trustee, and that by the sale under the second trust deed the title was conveyed to plaintiff. By giving the defendant the right to have the title quieted in him upon payment to plaintiff of his claim and the costs of the sale under the second trust deed,, the court did not commit error prejudicial to the defendant and of which he can' be heard to complain..

The decree was for the right party and should be affirmed. It is so ordered, and appellant has sixty days from this date to comply with the decree and judgment of the trial court.

Brown, P. J., and Ferriss, J., concur.


author: BROWN, P. J.

text:
    THE STATE v. GUSTAV F. STEINKRAUS, Appellant.
    Division Two,
    June 20, 1912.
    1. ARSON: Intent to Defraud Insurance Company: Property Insured at Defendant’s Request. Testimony that an insurance policy was written and handed to the agent .of the company for delivery; that defendant, when taking an invoice prior to the fire, stated he carried insurance on everything; and that defendant the day after the fire made claim of the agent who had written the policy for tlie loss he had sustained, amount to .evidence that defendant applied for and received a policy of insurance on the building.
    2. -: '-: That Company was a Corporation. In a prosecution for arson committed with intent to defraud an insurance company, it is not necessary to either allege or prove that the company was a corporation. The belief of the defendant that his property was legally insured and his intent to defraud the insurer, make out the crime of arson in the third degree. And in such case, it is immaterial whether or not the act of burning does in fact defraud the insurer.
    3. ;-: -: Evidence: Silence. The silence of one accused of a crime, where unusual and not according to the experience of mankind, becomes evidence of guilt and is competent. Where defendant either intentionally or accidentally set fire to his store, and immediately afterwards ran away and did not return until after the fire was extinguished, and was not injured or had any cause for neglecting to extinguish the fire, testimony that he made no statements regarding the fire to persons ho met immediately after the fire is competent, as is also testimony that when told there was a fire in town he pretended to be surprised and asked the location of the fire.
    4. INSTRUCTION: Circumstantial Evidence. It is only where all the evidence tending to prove defendant’s guilt is circumstantial that it is appropriate to give to the jury a cautionary instruction explaining the legal effect of that class of evidence. If a defendant admits setting fire to the building, but pleads it was accidentally done, an instruction on circumstantial evidence should not be given, for then the State’s case does not rest entirely upon such evidence.
    Appeal from Moniteau Circuit Court. — Hon. John M. Williams, Judge.
    Affirmed.

      W. F. Quigley, and Jeffries & Corum for appellant”.
    (1) The demurrer ought to have been sustained. There was no evidence that Steinkraus ever applied for a policy of insurance on his building; no evidence that he paid the premium on said policy; no evidence of the delivery of said policy to him; and no evidence that he knew of the issuance of any such policy, if one were issued. Martin v. State, 28 Ala. 82. (2) The allegation having been made that the Niagara Fire Insurance Company was a corporation, and such •allegation being essential, it then devolved upon the State to offer some proof of the de facto existence of that company as a corporation. No such proof was offered. But such proof was absolutely essential to sustain the charge of the information. State v. Harned, 178 Mo. 61; State v. Clark, 223 Mo. 50; Rhode Island v. Murphy, 16 L. R. A. 550; State v. Ahsam, 41 Cal. 645; R. S. 1909, Sec. 5238. (3) The trial court permitted witnesses to testify on behalf of the State that they saw the defendant after the explosion and that he made no declaration to them concerning it. These witnesses did not charge the defendant with the commission of any crime. No person made such an accusation against him in the presence of the witnesses. The defendant was not called upon to speak, and yet his silence was permitted to go to the jury as evidence of a confession of guilt. (4) Assuming that the jury did, as they must necessarily have, disregarded the testimony of the defendant and his co-defendant, Greer, to the effect that the explosion was accidental, then the evidence remaining is entirely circumstantial, and the court should have instructed the jury upon circumstantial evidence. State v. Crone, 209 Mo. .330; State v. Moxley, 102 Mo. 374.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
    The appellant was given a fair and impartial trial. The jury settled the conflict, in the evidence. Appellant admitted being at the place at the time of the fire. Instruction 11 put the question direct to the jury as to whether or not the fire was an accident as claimed by the appellant, and, if it was, to acquit. It is readily observed why the jury did not acquit, because if the appellant and his codefendant were telling the truth as to the fire being an accident they would have staid there and tried to have extinguished it, but instead made their escape, his codefendant leaving his “little finger,” and, also, his hat as a clew to his identity.
   BROWN, P. J.

Defendant was convicted of arson on September 8, 1911; and appeals from a judgment of the circuit court of Moniteau county fixing his punishment at two years in the penitentiary.

Defendant and one- David K. Greer were jointly charged with arson in the third degree by setting fire to-a small wooden building belonging to the defendant in the city of Tipton, Missouri, with intent to defraud the Niagara Insurance Company, a corporation. They were tried separately.

The following is a summary of the evidence:

Defendant and Greer were intimate friends, and both resided at Tipton with their families. Defendant kept a shoe store in the building he is charged with burning, and Greer kept a desk there and made the shop his headquarters when not on the road purchasing furs, hides, etc.

■The building was insured in the Niagara Insurance Company for $300. The contents of the building were insured in another company. On March 23, 1910, defendant purchased two gallons of gasoline, and took the same to his shoe shop. He and Greer were seen about the saloons of Tipton until late that night, and appéared to be drinking heavily.

About 3:30 the following morning, March 24, 1910, an explosion took place in defendant’s shoe shop, blowing one end thereof loose from the sills and enveloping the interior of said building in flames.

When the explosion occurred, defendant ran from the building, and did not return until long after the fire had been extinguished bjr citizens of the town, who were aroused by the ringing of the fire bell. It does not appear that defendant was injured by the explosion or had any cause for running away and neglecting to assist in putting out the fire which he had caused.

An employee of a livery stable, who was near defendant’s building, saw a man running from the building just after the explosion, and called loudly to him several times to ring the fire bell; but the party running paid no attention to his request.

When the fire was extinguished, a gallon jug one-third full of coal oil, a two-gallon jug two-thirds full of gasoline, and several sacks and papers saturated with coal oil or gasoline, were found in defendant’s building. Some of the papers were rolled up in such form as to indicate an intention to use them as a torch.

Defendant testified that he accidentally produced the explosion and fire by dropping a lighted match on the floor where gasoline had been spilled; that he kept gasoline at his shop for use in preparing lamp black for sign painting, and kept the coal oil for use in a lamp in the shop. He admitted running away when the explosion occurred; and as an excuse for not returning to assist in putting out the fire, claims he was taking care of Greer, whose hand was injured by the explosion.

Greer (indicted with defendant) testified that he and defendant remained up late that night to meet the former’s wife, whom they expected to return home on a night train. That they went to defendant’s shop at 3:30 a. m. to drink some whiskey which had been left there. That after taking a drink, he (Greer) went out the back door to attend a call of nature, and in going out, accidentally upset a can of gasoline. At about the time he returned, defendant struck a match to light his pipe and threw the match' to the floor, whereupon a loud explosion occurred which blew him (Greer) out the back door and blew the door shut with such force as to strike and amputate his little finger.

Greer’s evidence was partly corroborated by the finding of his finger inside the building and his hat just outside.

Some joists of defendant’s building were charred and partly burned by the fire.

Such other points as are necessary to an understanding of the case will be noted in our opinion.

For reversal, defendant contends:

(1) . That there was no evidence that the defendant ever applied for or received a policy of insurance on the building.

(2) . That there was no proof that the Niagara Insurance Company was a corporation.

(3) . That the evidence of defendant’s silence regarding the cause of the fire in his building was improperly admitted.

(4) . That the instructions for the State were erroneous in not requiring the jury to find that the Niagara Insurance Company was a corporation.

(5) . That the court failed to instruct on the legal effect of circumstantial evidence.

I. Defendant’s first contention is not sustained by the evidence. Mace L. Minor, an insurance agent, testified on behalf of the State that while working for one Roy F. Bane, the regular agent of the Niagara Insurance Company, he wrote"a policy of insurance on defendant’s building, and handed the same to Bane for delivery to defendant. It seems that Minor signed the name of Bane to the policy, but that is a matter of no consequence, as will appear hereafter.

At the trial defendant was interrogated regarding insurance on his personal and real property, with the following result:

When asked if he was preparing to insure his personal property when he took an invoice in January prior to the fire in March, he replied:

“A. I always carry insurance.
“Q. Sir? A. Even in Bane’s store I carried insurance on my store all the time. This is nothing new. This is all the time.
“Q. You carry insurance on everything, don’t you? A. I carry insurance on everything.”

In addition to the foregoing, Mr. Minor, who wrote the policy on defendant’s building, testified that the defendant made claim for the loss he had sustained on the day after the fire. It is true that it does not clearly appear whether defendant desired to collect for the loss he had sustained by injury to his building or to his personal property in the building; but as none of his personal property except a few shoe strings were burned, it must have been the injury to the building that he had in mind when he made his claim. It is therefore apparent that he knew his building was insured before he threw the burning match on the floor and caused the explosion and fire.

II. Defendant earnestly contends that it was necessary for the prosecuting attorney to charge in his information that the Niagara Insurance Company was a corporation; and that it was likewise necessary to prove the existence of the corporation; and to sustain his contention, cites State v. Horned, 178 Mo. 61, and State v. Clark, 223 Mo. 50. These cases are not in point. They hold that when a defendant is charged with stealing or burglarizing the property of a corporation, the indictment must recite and the State must prove that the injured party is a corporation. No such rule applies in a prosecution for arson committed with intent to defraud an insurer. In the latter class of cases where the insurer is a corporation, it is neither necessary to charge nor prove that fact. [State v. Tucker, 84 Mo. 23; 2 Wharton’s Criminal Law (10 Ed.), section 1894.]

The belief of defendant that his property was legally insured and his intent to defraud the person or corporation which issued the policy thereon, makes out the crime of arson in the third degree. It is immaterial whether or not the act of burning does in fact defraud anyone. [State v. Byrne, 45 Conn. 273.]

III. The defendant complains of the introduction of evidence to the effect that he made no statement regarding the fire to persons whom he met immediately after the explosion. While ordinarily one accused of crime has the right to remain silent, yet in cases where his silence is unusual and not in accordance with the common experience of mankind, it becomes evidence of guilt. It would be but slight evidence, it is true; but its weight would be for the jury. [State v. Glasscock, 232 Mo. 278.]

Here the defendant either intentionally or accidentally set fire to his property. If it was done accidentally, it is extremely probable that he would have mentioned that fact to the first acquaintance he met. When told that there was a fire in town he pretended to be surprised and asked the location of the fire. This was as strong an indication of guilt on his part as the fact that he needlessly ran from the building when he saw it was burning.

IY. It will be seen by what we have said in paragraph II that no proof was required that the insurer was a corporation. Consequently, it would have been error to direct the jury that such a finding was necessary. There was no error in the instruction complained of.

Y. Defendant further complains of the failure of the court to instruct the jury as to the legal effect of circumstantial evidence. His theory is that in convicting him the jury must have disregarded all his evidence and also the evidence of Greer. This contention is not tenable. It would have been perfectly logical for the jury to have believed the defendant in so far as he admitted that he caused the fire in his building by applying a lighted match to the floor thereof, and at the same time to have disbelieved his statement that he “did not intend by that act to set fire to the building. It is only when all the evidence tending to prove the defendant’s guilt is circumstantial that it is appropriate to give to the jury a cautionary instruction explaining the legal effect of that class of evidence.

It is true the burning of a building is not a crime if done accidentally; likewise, the killing of a human being is not criminal if done accidentally or in necessary self-defense; yet if an accused person admits the killing, but pleads accident or self-defense, such plea would not cause the State’s case to rest entirely on circumstantial evidence. Such a case would stand partly on the direct admission of the defendant and partly on the facts indicating his intent. In such case, no instruction on circumstantial evidence should be given. This doctrine is supported by one, of the cases upon which defendant relies. [State v. Crone, 209 Mo. 316, l. c. 331.]

The defendant had a fair trial and the record contains no reversible error; therefore the judgment will be affirmed.

Ferriss and Kenmsh, JJ., concur.