text:
    Ragan et al., Defendants in Error, v. McCoy, Plaintiff in Error.
    1. The trial of the issues raised in an action for the recovery of money only, to 'which the practice act of 1849 is applicable, is for the jury, unless a jury trial is waived; the jury should be allowed to try all the issues, the court declaring the law; it would be improper and irregular to submit portions of the issues to the jury and reserve the remainder for the determination of the court.
    2. Quere, where a court appoints three commissioners to sell and convey land, and they make a sale as directed, and after the sale and before making of the deed two of the commissioners die, whether the deed of the surviving commissioner acknowledged in open court would be valid and effectual ?
    3. Where streets of a town have once been dedicated to the public, the proprietors can not resume the property in such streets; there may be a dedication to the public of the streets of a town although the proprietors laying out such town may not comply with the provisions of the act concerning the plats of towns and villages. (B. C. 1845, p. 1055.)
    4. The acknowledgment of the plat of a town by the proprietors under the act of February 12, 1845, (B. C. 1845, p. 1055,) is not rendered defective by reason of a failure of the person taking the acknowledgment to state in the certificate the fact that the persons making the same were personally known to him to be the persons executing the plat.
    5. Where two persons are tenants in common of land, and one of them receives a benefit therefrom, but in nowise interferes with the joint use of the land by the other, and does not affect its value in any manner, it would seem that he does not render himself liable to account to such other joint tenant for a proportionate share of the benefit received.

      Error to Clay Circuit Court.

    This was a suit commenced in the year 1853 by Jacob Ragan, F. P. McGee, William Gillis, Robert Campbell, and William B. Evans, against John 0. McCoy and the unknown heirs of Henry Jobe, deceased. William B. Evans dying, his heirs were made parties plaintiff. The suit was originally commenced before the Jackson circuit court. It was transferred by change of venue to Clay county. Plaintiffs in their petition state that in the year 1838 an association was formed by certain individuals, (including some of the plaintiffs and McCoy, the defendant,) fourteen in number, for the purpose of purchasing a certain tract of land containing about one hundred and fourteen acres; that when said land was offered for sale by the commissioners appointed by the Jackson circuit court they bought the same; that two of the three commissioners appointed to sell and convey said land, Peter Booth and Elliot Johnson, died before making a deed to the purchasers ; that Robert Campbell, who was not one of the original purchasers, acquired the interests of three of those purchasers ; that in August, 1843, James B. Davenport, the surviving commissioner, executed a deed conveying said land to the said purchasers, Robert Campbell being substituted in place of three of them, each of the eleven original purchasers receiving each one-fourteenth and Robert Campbell three-fourteenths. The petition then proceeds to set forth various conveyances by which, as is alleged, the title became distributed as follows: Ragan one-fourteenth, Evans one-fourteenth, McGee two-fourteenths, Gillis three-fourteenths, Campbell four-fourteenths, McCoy two fourteenths, and the said Jobe or his unknown heirs one-fourteenth ; that on the 30th of April, 1846, the proprietors of said tract having previously laid off thereon the town (now city) of Kansas and made a regular plat of the same, a portion of said company, to-wit, Ragan, McGee, McCoy, Gillis, Jobe, and Evans, duly acknowledged said plat, and the same on said April 30,1846, was filed in the office of the recorder of the county of Jackson; that by said plat and the certificate of acknowledgment thereon endorsed said proprietors reserved to themselves individually and collectively the exclusive right and privilege of ferriage on said town tract, and the exclusive right of landing and fastening all ferry-boats and other water-crafts used for the purpose of ferriage to the bank in front of said town ; that they are as a company and as tenants in common jointly entitled to the ferry privileges and landing on this, the south, side of the Missouri river; that McCoy has taken possession of and has used and enjoyed the same for a long series of years, to-wit, since the filing of said plat, and has taken and used more than his due proportion of the benefit thereof or of the profits arising from said ferry; that said McCoy, having taken more than his due proportion of the profits or benefits arising from said ferry, is and was bound to pay to each of the plaintiffs his interest in the profits arising from said ferry ; that McCoy refuses so to settle and pay over, although demand has been made; that said ferry privilege is and has been worth since April 30, 1846, at least nine hundred dollars; that he is liable to pay plaintiffs at least four hundred and fifty dollars as rent per year from said date.
    The defendant McCoy by his answer denied that the interests of the several plaintiffs in the tract upon which the town of Kansas had been laid out were as charged; alleges that all of said land except a very small amount had been divided by agreement; denied that an effectual reservation had been made as charged; that- the plaintiffs are jointly entitled to the ferry privilege; or that defendant has taken or received more than his due share or proportion of the benefit thereof or of the profits arising therefrom; or that he owes plaintiffs any thing whatever of profit arising from said ferry; or that the ferry privilege was worth the sum charged. By a supplemental answer defendant set up a dedication to the public of the land used for the purposes of a ferry long before the filing of the plat of 1846.
    At the trial the court submitted to the jury the following issues : “ First — The petition asserts and the answer denies that plaintiffs and defendant were tenants in common of the ferry privilege mentioned in the pleadings. Second — The petition asserts and the answer denies that the yearly value of the said ferry privilege was worth nine hundred dollars. The jury will find whether the said parties were tenants in common, and how much the yearly rent of said ferry privilege was worth.”
    ' In support of the issues the plaintiffs adduced in evidence various conveyances to themselves from various parties. They also introduced in evidence, against the objections of defendant, an original plat of the town of Kansas, on which the blocks and streets of the town were laid out. On the margin of the face of this plat was the following memorandum : “The proprietors reserve to themselves and to their heirs and assigns forever the exclusive right of ferriage on this town tract.” On the back of this plat there was this certificate of acknowledgment: “ State of Missouri, county of Jackson, ss. Personally appeared William G-illis, Ery J. McGee, John 0. McCoy, Jacob Ragan, Henry Jobe, William B. Evans, before me, Walter Bates, a justice of the peace within and for the township of Kaw, county and state aforesaid, and severally acknowledged the within town plat to be their act and deed for the purposes therein set forth; hereby conveying and granting for public use all the streets, alleys, squares and public grounds as shown on .the within plat; reserving, however, to themselves, individually and collectively, and to their heirs and assigns forever, the exclusive right and privilege of ferriage on said town tract, and the exclusive right of landing and fastening on said town tract all ferry-boats and other water-craft used for the purpose of ferriage on the bank in front of said town. Taken and certified this 30th day of April, 1846. Walter Bates, J. P.” “ Piled 30th day of April, 1846. S. D. Lucas, clerk.” Plaintiffs also introduced T. A. Smart as a witness, who testified that in 1839 McCoy was keeping a ferry from the site of the town of Kansas to the opposite shore; that he had kept it ever since ; that about that time the town of Kansas was laid out, and there was a public sale of lots according to a survey made by one Donahoe; that nothing was said at the time of the sale of the lots of a reservation of ferry privileges; that Front street has ever since been used as a street; that McCoy was the owner of the land on the north side of the river ; that some of the plaintiffs ran a ferry across the river a part of the year before 1846 ; that he had never heard of MeCoy’s objecting to their running or landing their boats on his lands or the town site ; that up to 1846 the ferry privilege was worth nothing ; that since that time the ferry, including both sides of the river, was worth an annual rent of seven hundred dollars. The court refused to permit the witness to answer the question asked by defendant whether McCoy’s keeping up the ferry had not been of immense advantage in building up the town of Kansas and enriching the owners of the site.
    The plaintiffs offered in evidence the deed executed by Davenport, the surviving commissioner, to the proprietors of the town site. This deed recited the sale of the land by the three commissioners, the transfer of the interests of three of the purchasers to Robert Campbell, and the death of two of the commissioners. The entry of acknowledgment of said deed by Davenport in open court recites the death of the two commissioners Johnson and Booth.
    William S. Donahoe testified in behalf of defendant that in 1838 or 1839 he laid out and made a plat of the town of Kansas ; that he was employed to do so by one of the proprietors of the town site; that there was a public sale of lots in 1838 or 1839; that a nnmber of lots were sold at said sale; that they were sold as laid out on said plat. This plat was found in the recorder’s office with the following endorsement thereon: “Filed 3d of May, 1839.. Samuel C. Owens, clerk.” Owens was recorder at the date of this endorsement. The court refused to permit this endorsement or entry to be given in evidence. The plat was received in evidence.
    The plaintiffs moved the court to instruct as follows : “1. If the jury believe from the evidence that plaintiffs, or any of them, and defendant McCoy were tenants in common from May 1, 1846, till August 12, 1853, in the ferry privileges at Kansas city, then they will find the first issue for plaintiffs or such of them as may be tenants in common. 2. To constitute tenants in common, the plaintiffs or some of them must have been joint owners of the said ferry privileges with McCoy. 3. A ferry privilege is an incident to land, and the proprietors of the town of Kansas had the right to reserve the ferry privileges when they laid off and made the plat of said town. 4. By the plat of the town of Kansas, made out and acknowledged by the proprietors Ragan, G-illis, Evans, McG-ee, Jobe and McCoy, and filed in tbe recorder’s office of Jackson county in April, 1846, and tbe endorsements thereon, tbe proprietors, or such of them as acknowledged tbe said plat, reserve to themselves all ferry privileges that attached to said town tract, and tbe reservation so made is not inconsistent with tbe dedication of tbe streets to public uses. 5. If the jury find from tbe evidence that plaintiffs, or part of them, and McCoy, in April, 1846, made, acknowledged and filed a plat of said town with tbe reservation so made thereon, then tbe said plaintiffs, who signed the same, and tbe said McCoy, are, as between themselves, bound by said plat and reservation, notwithstanding a plat and a sale of a few lots may have been made in 1839. 6. So far as this case is concerned, there is but one legal plat, and that is the one read in evidence, dated in April, 1846. 7. The plaintiffs, who acknowledged the plat of April, 1846, and the said McCoy, are bound by said plat, and they can not go behind it; and before the jury can find for McCoy, they must find that he did not acknowledge the said plat. 8. The legal effect of the reservation of the ferry privileges on the plat of April, 1846, was to retain in the proprietors, to-wit, Ragan, Gillis, Evans, McCoy, McGee and Jobe, the ferry privileges at Kansas as tenants in common. 9. The jury may find that a part of the plaintiffs are tenants in common with McCoy and a part are nut; but if they so find, they must name who are tenants and who are not.” The court gave all these instructions except the seventh.
    Various instructions asked by tbe defendant were refused. In these the defendant sought to put to the jury the question of a dedication to the public in 1839 of the street used as a ferry landing. In reference to certain questions submitted to the court by the jury, the court instructed as follows : “ In response to the first question submitted to the court by the jury, the court instructs the jury that the reservation in the plat and acknowledgment filed in April, 1846, did not confer upon any parties the right to land the ferryboat on the north side of the Missouri river, but left the rights of the parties as to the north side of the river as they were before. In response to the second question submitted to the court by the jury, the court instructs the jury that in assessing the value of the ferry privileges the jury will find what the whole ferry privileges, including the right to land the ferry-boat on both sides of the river, were worth, leaving the court to apportion the same according to their rights, provided the jury find that the plaintiffs or any of them are tenants in common of said ferry privileges with the defendants.”
    The finding of the jury is as follows : “ We, the jury, find that part of the plaintiffs, to-wit, Jacob Ragan, Fry J. McGee, William Gillis, William B. Evans, since deceased, whose heirs are plaintiffs [naming them], were the owners as tenants in common with the defendant John C. McCoy of the ferry privileges of the ferry across the Missouri river at the town of Kansas from the 1st of May, 1846, until the 12th of August, 1853; and so the jury find the first issue for the said plaintiffs Ragan, McGee, Gillis, and the said heirs of Evans, against the said defendant John 0. McCoy. And the jury on the second issue find that the yearly value of said privileges was worth seven hundred dollars per year during the said time.”
    The court made the following finding in addition to that of the jury: “ The court finds the following facts not found by the jury and not embraced in the issues submitted to the jury. 1st. The court finds that the plaintiffs Jacob Ragan, Fry J. McGee, and William Gillis, and the defendant John C. McCoy and others, were joint purchasers of the land upon which the town of Kansas was laid out, and that there were in all fourteen original joint purchasers. These facts are averred in the petition, not denied by the answer, and are taken by the court in this finding as true. 2d. The court finds that the defendant John C. McCoy arsed and kept the ferry and had the same for his benefit and received the entire proceeds of the profits of the ferry privileges of the ferry across the Missouri river, at Kansas city, from the 1st day of May, 1846, until the 12th day of August, 1853. These facts are averred in the petition, not denied in the answer, and are taken by the court in this finding to be true. 3d. The court finds that neither the said Jacob Ragan, nor Fry J. McGee, nor William Gillis had any right, title or interest in the land on the north side of the Missouri river, where the ferry-boat landed, but the same was owned during said period between the 1st of March, 1846, and August 12, 1853, solely and exclusively by defendant McCoy. 4. The court finds that neither of the plaintiffs demanded of the defendant John C. McCoy any part of the proceeds of the ferry during the time aforesaid before the bringing of this suit, nor has the defendant John C. McCoy tendered to the said plaintiffs or either of them any part of the proceeds of the said ferry during that time.”
    The court gave judgment upon both findings in favor of Ragan, McGee and Gillis for one-fourteenth each of one-half of the profits of the ferry at seven hundred dollars per an-num from 1846 to 1853, and in favor of Evans’ heirs for one cent.

      Hovey, for plaintiffs in error.
    I. The plat of 1846 was not competent evidence. It was not acknowledged by the persons asserted by the petition to be the proprietors. It was not signed. The justice does not certify that the persons were known to him. (R. C. 1845, p. 1056 ; p. 221, 222, § 15,16, 20, 21.) The question asked of the witness Smart was proper and should have been answered. (R. C. 1845, p. 55; Ashm. 136.) The first instruction given for plaintiffs is erroneous. Unless the plaintiffs and defendants were all tenants in common, the verdict could not conform to the pleadings. Unless they were all tenants in common, their interests could not be fourteenths. (See 20 Mo. 30.) The third and fourth instructions given were erroneous. (21 Mo. 70.) The latter assumes that an acknowledgment by a part of the proprietors would be a lawful town plat. It assumes that the plat of 1846 was a valid town plat and lawfully acknowledged. (8 Mo. 710.) So the fifth instruction. There is no evidence of a lawful acknowledgment, and no signing as mentioned in it. (27 Mo. 26.) The sixth, eighth and ninth instructions were erroneous. (See 4 John. 81; 26 Mo. 394 ; 26 Mo. 393.) So álso the instructions given in response to the questions put by the jury. A parol dedication acquiesced in by the owner and used by the public for six or eight years is a complete dedication. (3 Kent, 433, 450.) The facts in evidence show a dedication in 1839. (6 Pet. 431, 728; 9 B. Monr. 202; 8 Dana, 54; 4 J. J. Marsh. 539; 16 B. Monr. 170, 804; 15 Mo. 635 ; 8 B. Monr. 232; 3 Mo. 330 ; 7 Ind. 39.) Tenancy in common can not exist without possession. McCoy’s possession was sufficient title as against all persons not showing a superior or equal title. (6 B. & Or. 703; 4 Burr. 2487 ; 2 Ohitt. Bl. 59, 196.) Mere occupancy of the estate by one tenant in common does not give the action of account to another tenant in common, if the estate is susceptible of being occupied by all. (12 Mass. 150 ; 17 Pick. 24; Addison, Contr. 373 ; 17 Q. B. 701.) The action for an account is not maintainable without a demand and refusal to account. (9 Mo. 697 ; 3 Mo. 315 ; 16 Mo. 525 ; 19 Mo. 467; 6 Cow. 475.) There was no finding as to the dedication set up in the answer. There was no order to account and no reference. (R. C. 1845, tit. Account; 1 Wheat Selw. 5; 1 Mo. 514; 21 Mo. 149.)

      Sheley, for defendants in error.
    I. A ferry privilege is an incident to lands. The owner may sell the land and reserve the privilege. (9 S. & R. 32 ; 8 B. Monr. 256; 2 McLean, 388; 3 Watts, 219; 1 Yates, 167 ; 20 Wend. 133; 2 Dev. 404; 6 B. & Cress. 703; 3 Term. 142.) The proprietors of Kansas were tenants in common. When they laid out and platted the town in 1846 they remained tenants in common in the reserved ferry privileges. The parties acknowledging the plat of 1846 are estopped to deny it. (8 Dana, 60; 5 Term. 76 ; 3 Gill &
      Jo. 29 ; 16 Mo. 432 ; 14 Mo. 482; 16 Mo. 273 ; 2 B. Monr. 429; 5 Cow. 129 j 4 Cow. 492 ; 4 Johns. 230 ; 3 Mo. 29.) The supposed plat of 1839 was not acknowledged. McCoy’s possession was the possession of the company. (3 Dev. 324; 25 Wend. 409 ; 3 Mo. 529; 3 How. 674; 31 Maine, 34; 22 Verm. 617; 11 Cal. 370.) Although a dedication may have been made in 1839, yet, as the ferry was in existence at that time the ferry privilege was impliedly reserved. (8 Dana, 63.) Although a part of plaintiffs may not be entitled to recover, yet those who are entitled may. (17 Mo. 175 ; 17 Ark. 660.) The deed of the commissioner Davenport should have been admitted.
   Scott, Judge,

delivered the opinion of the court.

This suit was commenced whilst the practice act of 1849 was in force • consequently it should have been conducted according to the provisions of that act. It was an action for the recovery of money, and therefore under the said act was properly triable by a jury. The prayer for a discovery did not the less make it a case to be tried by a jury. We have held that the act of 1849 abolished the bill for a discovery. (Worley v. Bond, 26 Mo. 253.) The case, then, being one for a jury, the court had no right to share its functions and take upon itself a portion of its duties. In cases to be tried by juries, the jury tries all the issues and the court gives the law. If parties waive a jury trial, and the cause is submitted to the court, then the court without a jury finds the facts and declares the law of them. We are speaking of the act of 1849. In this case, indeed, the court seems to have taken to itself the trial of the facts, and put the finding out of the law upon the jury. Whether the plaintiffs and defendants were tenants in common under the facts of the case was purely a question of law.

We will not undertake to say whether the sale in partition was valid or not on account of the deed having been executed by one commissioner only, the other two having died. It appears that the fact of the death of two of the commissioners was brought to the knowledge of the court before the deed was perfected, and it is strange that the vacancies in the board of commissioners were not supplied. Why has it not been done since and another deed executed; or, if that is now impracticable from deaths and alienations, why not call upon the general assembly to make valid the first deed ? This would not make matters any worse, and it might help them.

In a supplementary answer the defendant set up as a de-fence the first dedication in 1839 of the street which gives rise to, this controversy. If there was an actual dedication at that time, the property could not afterwards be resumed by those making the dedication. There is strong evidence of such a dedication; and the proprietors of the town can not take advantage of their violation of the law in not making the dedication in the manner prescribed by the statute. They may have subjected themselves to a penalty, and yet in favor of third persons their act will be binding. (The City of Hannibal v. Draper, 15 Mo. 638.) If this suit is again tried, it will be determined whether there was a dedication in 1839.

The plat of April 30,1846, is not in the record. We can, therefore, give no opinion as to its conformity to law. But we do not see, in the words of the statute, any foundation for the objections that it was not signed by the proprietors, and that the justice did not certify, in the acknowledgment taken, that they were known to him to be the persons they represented themselves to be.

We see no error in the ruling of the court in refusing permission to the witness to testify as to the advantage of the ferry to the town at large. As the plaintiffs claimed a sum of money, which they alleged was due them, we do not see how that circumstance could affect the amount claimed.

The important question in this case is whether, admitting that the plaintiffs and defendants are tenants in common of the ferry privilege, or street, or space of ground where the ferry was kept, the plaintiffs can maintain this action ? It is said that if one tenant in common occupies the whole estate, without any claim on the part of his co-tenants to be admitted into the possession, and without hindrance by him of such possession, he is not liable to his co-tenants in an action of account. (Coke Litt. 200, b.; Bacon’s Abrid, tit. “ Joint Tenants,” letter L.; Sargent v. Parsons, 12 Mass. 149; Woolever v. Knapp, 18 Barb. 266.) The modern English •authorities are to the same effect. (Henderson v. Easom, 9 Eng. Law & Eq. 337.) Our statute giving an action of account to joint tenants and tenants in common against each other is similar to the statute of New York and the statute of 4 Anne. The tenant is only liable as bailiff or receiver, and this relation can only arise by contract. Each tenant is entitled to the possession, and may enter and enjoy if he will. As each tenant is entitled to his share of every part of the undivided premises, one tenant can not gain an exclusive right to any part of them. He may enter and enjoy a portion less than his share, yet the other tenants will be entitled to, their share of that portion, as each tenant is seized of his portion of every part of the undivided premises ; so that if the law were otherwise, one tenant might refuse to enter, and the other could not enjoy any portion, even one less than his share, without making himself liable to the others for a share of the profits, and that without regard to the fact whether the occupation was beneficial or otherwise to the premises. Of course, if one co-tenant ousts another, he will be liable in an ejectment, or subject himself to the law of forcible entries. But where the land is free to all, and each may enter if he will and enjoy his rights undisturbed, there is no reason in compelling him, who does enter, to pay rent to him who neglects or obstinately refuses to do so.

But how much stronger is the ease before us than the one put ? Here are tenants in common of a parcel of land on which a ferry may be kept. One of them obtains a license and actually keeps a ferry, an employment that nowise lessens the value of the common property, but on the contra^y?^ heightens it. Each of the tenants may do the same tl'jjngj- y They neglect it, however, and yet would enjoy the profits of him who does. Licenses to keep ferries continue for one year.. It does not appear that the license granted the defendant has obstructed the enjoyment of the right of the others, or but that redress might have been had if application had been made to the proper tribunal. The right to keep a ferry is a personal privilege sold to the person obtaining the license, and is not transferable. (Stark v. Milber and others, 3 Mo. 330.) Suppose two were tenants in common of a private stream, which afforded as many fish as both could take, and one of them made the taking of fish his business, from which he reaped a profit, would the other be permitted to share that profit ? It may be that the expenses would be diminished, and thereby their profits increased by uniting in the employment ; but if they will not do this, and one is at all the expense, why should they share the profits, when the employment has not at all affected the value of the common property ?

As the plat of 1846 is not before us, we will hazard no opinion as to the effect of it between the proprietors.

As we suppose this suit was brought to try the right of the' parties to the ferry privilege, the cause will be remanded so that the parties may amend their petition in a way that their action may be adapted to that end.

The mode of trying the cause, and the error in the instruction in relation to the dedication in 1839, are sufficient to reverse the judgment.

Reversed and remanded.

The other judges concur.


source: Caselaw Access Project

author: Scott, Judge,

license: Public Domain

text:
    Duncan, Defendant in Error, v. Matney, Plaintiff in Error.
    1. In order that the defendant in an execution may recover damages against a sheriff for an irregularly conducted sale of property by such sheriff, he must show some loss or damage resulting to himself as a natural and legal consequence of the irregularities and improprieties complained of; he can not fix the measure of his own damages by his voluntary act in paying money to recover back from the execution purchaser the property alleged to have been irregularly sold.
    2. To constitute a valid levy of an execution on real estate, it is not necessary that notice of the levy should be given by the sheriff to the defendant in the execution; nor is it necessary that he should go on the land to make the levy, if he is sufficiently informed in relation to it to describe it properly.
    3. A sheriff succeeding to office upon the resignation of his predecessor must proceed to do all things remaining to be done and performed in relation to the execution of process commenced and partly executed by his predecessor, or by the coroner, provided such acts in part execution are legal and regular.
    4. It will not invalidate a levy in real estate that the name of the county in which the land is situated is not stated in the advertisement of sale.
    5. The law is silent as to what shall constitute the evidence of a levy; it will be sufficiently regular if the memorandum of’the levy be made upon a separate piece of paper and copied upon the writ of execution before its return; the officer may use his advertisement as evidence of the levy in making his return to the writ.
    6. When an instrument, of whatever solemnity, is offered merely as containing an admission against the party executing it, it is competent for him to explain it.

      Error to Buchanan Circuit Cowrt.

    This was an action to recover damages for the sale of plaintiff’s land by the defendant, as sheriff of Buchanan county, by virtue of an execution. Plaintiff alleged in his petition that about the 14th day of December, 1857, defendant was sheriff of Buchanan county; that a certain judgment had previously been rendered against plaintiff; that an execution issued on said judgment' and “ was placed in the hands of the sheriff of Buchanan county for collection that about said 14th of December, 1857, defendant, under said execution, sold all the right, title and interest of plaintiff in and to west half of the south-west quarter of section twenty-six, in township fifty-six, of range thirty-five ; “ that no legal levy had ever been made on said land so sold by defendant or any one else; that defendant never advertised said land for sale, but sold without advertising the same for sale in due form of lawthat plaintiff was never notified by defendant or any one else of said execution so that he could make his selection as provided by statute; that plain tiff bad always a sufficiency of personal property not exempt from execution. “ Plaintiff further states that for the purpose of getting back said property so sold he had to pay out and expend and otherwise incur liability to the amount of two hundred dollars. Plaintiff further states that by reason of said illegal levy, proceedings and sale of said land by said defendant, he has been damaged in the sum of two hundred dollars, and for which he prays judgment.”
    At the trial the plaintiff adduced the following facts in evidence. He introduced S. N. Sheridan as a witness, who testified that he was sheriff of Buchanan county about the 4th of November, 1857, when the execution referred to in the petition came into his hands as sheriff. The execution was dated November 4, 1857. He testified that he never notified Duncan that said writ was in his hands ; that when he resigned his office of sheriff he handed over all the papers in his hands as sheriff, including this execution, to W. Ri Penich, the coroner. Penich, the coroner, testified that the writ came into his hands to be served about 28, 4, 5, 6 or 7th of November, 1857; that with it was the copy of an advertisement for the sale of land; that from this copy he endorsed on said execution a levy of said writ, and handed in the copy of the advertisement to the Journal office to be published in the St. Joseph Weekly Journal, a paper published in St. Joseph, Buchanan county; that he endorsed said levy on said writ without leaving the city of St. Joseph and without notifying the plaintiff thereof; that he handed over the writ of execution to Matney, the defendant in this suit. The execution with the endorsement thereon was introduced in evidence. The endorsement was as follows : “ I levied the within execution on the following described real estate — eighty acres of Irnid, west half of south-west quarter of section twenty, township fifty-six, range thirty-five — also eighty acres of land, west half of north-west quarter of section twenty-six, township fifty-six, range thirty-five — also one hundred and twenty acres of land, east half and south-west south-west quarter of section twenty-three, township fifty-six, range thirty-five. Done in Buchanan county, in Missouri, November 26,1867. Advertised for sale in Journal, December 19, 1857. W. R. Penich, coroner.” “I return the within execution satisfied in full. December 19, 1857. James H. Matney, sheriff.”
    The plaintiff also introduced in evidence the deed of the sheriff Matney. This deed recites the judgment, the issuing of the execution “ directed to the sheriff of said county, and to me, the said sheriff, delivered, by virtue of which said writ or execution I, as sheriff aforesaid, did on the 26th of November, 1857, levy upon and seize all the right, title and interest, claim, estate and property” of the said Duncan in and to the following described real estate, to-wit: Eighty acres of land, west half of south-west quarter of section' twenty-six, township fifty-six, range thirty.five — also the west half of the north-west quarter of section twenty-six, township fifty-six, range thirty-five — also one hundred and twenty acres, east half and south-west quarter section twenty-three, township fifty-six, range thirty-five.” The deed then recites that previously to the day of sale he gave more than twenty days’ notice of the time and place of sale by causing a full description of said property to be advertised in the St. Joseph Weekly Gazette; that he did on the 19th of December, 1857, sell a portion of said real estate, to-wit, the west half of the south-ivest quarter of section tiventy-six, township fifty-six, range thirty-five. He then proceeds to convey said tract to the purchasers.
    The defendant having duly proven advertisement of sale published in the St. Joseph Weekly Journal, offered the same in evidence. The court ruled it out on objection of plaintiff. It was as follows : “ Sheriff’s sale. By virtue of an execution to me directed issued from the clerk’s office of the Buchanan court of common pleas, in favor of Benjamin E. Loan, and against Bartly M. Duncan and Augustus Mark, I will, on the 19th day of December, 1857, sell to the highest bidder, for cash in hand, at the court-house, in the city of St. Joseph, Buchanan county, Missouri, between the hours of nine o’clock A. M. and five o’clock P. M. of said day, and whilst the said court is in session, all the right, title, interest and claim of the said Bartly M. Duncan of, in and to the following described real estate, viz: Eighty acres of land, west half of. south-west quarter of section twenty-six, township fifty-six, range thirty-five — also eighty acres of land, west half of north-west quarter of section twenty-sis, township fifty-six, range thirty-five — eighty acres of land, south half of north-west quarter of section twenty-three, township fifty-six, range thirty-five — also one hundred and twenty acres of land, east half south-west south-west quarter of section twenty-three, township fifty-six, range thirty-five, to satisfy said execution. [Signed] W. R. Penich, coroner. November 27.”
    The court, at the instance of the plaintiff, gave the following instructions to the jury: “ 1. There is no evidence before the jury that said land sold was ever advertised for sale; and no- sale of land by a sheriff is a legal sale on his part without advertisement. 2. If the jury believe from the evidence that defendant sold said land of plaintiff without first having advertised the same, either himself or some one other to advertise for sale the said lands, they will find for plaintiff, and assess his damages at such sum as he has sustained thereby. 8. Defendant admits that he never advertised said land for sale.”
    The court gave the following instructions asked by defendant : “ 1. Unless the plaintiff had some title to the land mentioned in the petition the jury will find for the defendant. 2. This defendant is not liable in this action for any omission on the part of Sheridan or Penich, whilst they had the execution given in evidence in their hands as officers, failing- to perform acts required by law and said writ to be performed by them as such officers. 3. The levy endorsed on said execution is evidence that said land was seized by the officer to satisfy said execution. 4. Unless the jury believe from the evidence that the plaintiff has sustained some damage by the sale of said land, this defendant will find for him. 5. Unless tbe jury believe from tbe evidence that tbe land mentioned in tbe petition was not levied upon by virtue of said execution by an officer authorized to levy tbe same, or was sold by defendant without having been first advertised for sale for twenty days prior to tbe time fixed for such sale, or by full publication in a newspaper printed in said county, tbe jury will find for tbe defendant.” Tbe court refused tbe following instruction asked by defendant: “ 6. Tbe recitals in the sheriff’s deed read in evidence are prima facie evidence of tbe matters contained in such recitals.”
    The jury found for plaintiff.

      Loan, for plaintiff in error.
    1. Tbe court erred in excluding tbe notice of sale offered on part of defendant. Tbe instructions given for plaintiff were erroneous and calculated to mislead. Tbe motions for a new trial and in arrest should have been sustained.

      Vories 8p Tories, for defendant in error.
    I. Tbe advertisement was properly excluded. Tbe land advertised and sold by tbe sheriff’s deed had never been levied on. Tbe return on the execution shows the tract levied on to have been tbe west half of the south-west quarter of section twenty, township fifty-six, range thirty-five. Tbe land sold was in section twenty-six. Neither the levy nor the advertisement states'in what county tbe land was situated. (R. C. 1855, p. 746, § 45.) There was a variance between tbe advertisement and tbe deed with respect to the paper in which the advertisement was made.
    II. The court committed no error in giving the first and third instructions. The land was not advertised as the law directs. The advertisement shows land upon which no levy had been made. The court committed no error in refusing the sixth instruction.
   Scott, Judge,

delivered the opinion of the court.

This is one of those suits, becoming so common under our present practice act, from which it is impossible to ascertain wbat legal idea was in the mind of the attorney at the time he wrote the petition. It is alleged that the plaintiff, “ for the purpose of getting back the property illegally sold, had to pay out and expend and otherwise incur liability to the amount of two hundred dollars.” The petition then concludes with the averment that, by reason of said illegal levy, proceedings and sale of said land, the plaintiff has been damaged in the sum of two hundred dollars, for which he prays judgment. We infer from this that the plaintiff claims as damages, and as the measure of the loss he has sustained, the two hundred dollars he paid to obtain the restoration of the property sold. It is admitted then that the sale passed title. If that was the case, then the irregularity of the sale did not make it invalid. If the plaintiff then sustained an injury, it must have been by reason of the irregularities of which complaint is made. Now how does he make it appear that the payment by him of two hundred dollars was a natural and legal consequence of the irregularities ? If any irregularity had been committed by the officer in conducting the sale, and that irregularity, being known to the by-standers, had damped the ardor of bidders or in any manner caused a diminution of the sum that would otherwise have been realized from the sale, the plaintiff would be entitled to recover the damages he could show he had sustained by reason of the misconduct of the officer; but he does not allege that the proporty was sacrificed, or that the sale was injuriously affected by the matters of which he complains. That he gave two hundred dollars to regain his property is no evidence of the extent of the loss he sustained, or that payment was no legal and natural consequence of the misconduct of the officer. Such payment may have been prompted by motives with which the sheriff had nothing to do and which ought not to have affected him. Had his malice prompted the plaintiff to pay ten thousand dollars for the restoration of his property, could he have expected to recover that sum ? He had no right to fix the measure of his damages by a voluntary payment.

We will now examine the breaches of duty of which the plaintiff complains the officer was guilty. One of them is, that no levy was made. Our statute regulating executions declares that the word “ levy” shall be construed to mean the actual seizure of the property by the officer charged with the execution of the writ. (Section 74.) This, of course, only applies to property capable of being seized. The act regulating fees directs that when an execution is served on real estate, the officer shall be bound to go on the land or sufficiently near it if necessary in order to describe it properly. (Section 13.) Now it will be seen that the law is silent as to any notice to the defendant in the execution being requisite to constitute a valid levy, and also as to the manner in which a levy shall be evidenced. There is nothing in the case which shows that it was necessary to go on land to make a levy, which is not required if the officer is otherwise sufficiently informed in relation to the property to describe it properly.

The twenty-fifth and thirty-fourth sections of the act regulating exerations giving the defendants the right to elect on what property executions shall be levied, and the order in which the property shall be offered for sale, are silent as to notice by the sheriff to those defendants. This is a subject for legislation, and the courts can not, without assuming-duties which do not properly belong to them, make rules in relation to it. A good officer, when it is practicable, will always inform a party of an execution he may have against him, if he believes he is not aware of it, and will confer with him before he makes a levy. But the defendant may be out of the way; he may be out of the county ; or, knowing the shortness of time in which a levy and advertisement must be made, he may keep out of the reach of the officer, and thus prevent a levy in time to make a sale before the return day of the process. In this way many abuses would creep in, which would he beyond any power of correction the courts possess. The law seems to have left to defendants, against whom executions have been issued, the duty of taking notice of the fact. It is generally known to defendants, and laws are adapted to the cases which most frequently occur. In the event of abuse by the officer, or of collusion with the plaintiff or others, the courts can give redress by virtue of the control they possess over the execution of their process.

It is singular that, under the circumstances, the court should have instructed the jury that the defendant admitted that he did not advertise the land. The defendant, in making the sale, acted as the successor in office to another. He had been in office but a few days before the sale. In order to make a sale at the return term of the court it was necessary to adopt the levy and advertisement of his predecessor and carry on the execution of the process begun by the officer whom he succeeded, and it is stated expressly in the answer that the land was advertised by the officer whom he replaced, and yet the court instructs the jury that he admitted that he did not advertise the land, and gives no explanation of the object of the instruction. Now what was the purpose of such an instruction ? Was it to declare that the successor in the sheriff’s office could not adopt the act of his predecessor in part execution of process ? Was he not bound to do it ? Could he subject the defendant to the cost of another levy and advertisement, without incurring a liability to an action ? It is not maintained that the successor must adopt the acts of his predecessor if he is satisfied that they are illegal and irregular.

The plaintiff does not show that he sustained any damage by reason of the omission in the advertisement of the name of the county in which the lands were situated. It is generally known that the sheriff of one county can not, under an execution, sell lands lying in another; nor is it shown how he was damaged by the mistake he made in copying the description of the land levied on. The evidence shows that the land advertised was the land sold, and it is hard to see how a mistake in copying a levy from another paper on the back of the execution could prejudice the plaintiff. If the levy was properly made, a mistake afterwards committed in copying it could not affect tbe legality of tbe sale. We have already said that tbe law is silent as to wbat shall bé tbe evidence of a levy; but if a levy is made, and a memorandum made of it on a separate piece of paper, and that memorandum before tbe return of tbe writ is copied on it, we see no objection to tbe regularity of such a course, nor to tbe officers using bis advertisement as evidence of a levy in making bis return to tbe writ. Tbe plaintiff’s own witness explains tbis whole matter.

Tbe court erred in rejecting as evidence tbe advertisement of tbe sale. If it be said that it was inadmissible because it contradicted tbe defendant’s deed, it may be answered that although a deed can not be contradicted when used as evidence of the agreement and understanding of the parties to it, yet tbis deed was offered in evidence by the plaintiff merely as an admission of tbe defendant, and tbe rule is, that when an instrument, of whatever solemnity it may be, is offered merely as an admission made by tbe party executing it, it is always competent to him to explain it, and to show that be was under a mistake in making it, or to prove any other circumstances which will do away with tbe effect of tbe admission.

Reversed and remanded.

The other judges concur.


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    Keene, Plaintiff in Error, v. Barnes, Defendant in Error.
    1. Under the act of Congress of March 2,1821, (3 U. S. Statutes at Large, p. 612,) purchasers of the public lands "who had not paid the whole purchase money might relinquish their purchases and others might be substituted in their places and might complete the purchases.
    2. A sale, by the marshal of the United States, at the court-house in St. Louis, under a judgment of the United States district court, of lands situate in Boone county, is, it seems, valid.
    3. A sheriff acting under the act of the general assembly of February 27, 1843, (Sess. Acts, 1843, p. 137,) sold thirteen several tracts assessed in the names of different persons for the taxes of the year 1842. They were sold in the lump and for the aggregate taxes of that-year, the taxes due on each tract separately not being stated. Held, that the sale and the deed made in pursuance thereof were void.

      4. A county collector making sale of land for taxes under the act of February 13, 1847, (Sess. Acts, 1847, p. 119, § 10,) -was bound to make his sales before the door of the court-house of the county; so also he was required to setup at the court-house door a copy of the advertisement by the register of lands of all the unredeemed lands of the state for sale, also to set up at the most public places in the county the twenty slips received from the register setting forth the lands and lots advertised in each county. If these requisites were not complied with, the sale by the collector would be invalid.
    5. Where an action of ejectment is brought against several, and it appears that their possession is not joint, but several and adverse, of separate portions of the tract claimed, the plaintiff may be required to elect against which of the defendants he will proceed to lake judgment.

      Error to Boone Circuit Court.

    This was an action in the nature of an action of ejectment against Tarlton Barnes, Philip Barnes and Samuel Ash-lock, to recover possession of the south-west quarter of section fifteen, township forty-seven, range eleven. The defendants denied joint possession, and asserted several and adverse occupancy. The plaintiff, in support of his title, introduced transcripts of entries at the land office. These entries showed that one Burckhart had first entered the quarter section in controversy in 1818 and had paid part of the purchase money. Plaintiff also introduced a final certificate of entry issued in 1821, to Angus L. Langham. No conveyance by Burckhart to Langham was shown. Plaintiff then introduced a certified copy of a judgment rendered in the year 1823 in the district court of the United States for Missouri, against said Langham. An execution issued upon this judgment and under it the marshal of the United States levied upon the land in controversy, together with many other tracts situate in different counties of the state. The marshal made his sale under this levy at the door of the court-house of St. Louis county. Jesse G-. Lindell became the purchaser of the tract in controversy at this sale and received the marshal’s deed therefor, dated March 12,1825. Lindell, in the year 1855, conveyed the same to plaintiff. It also appeared that Philip Barnes, one of the defendants, was in the separate and exclusive possession of twenty acres of the land in controversy; tbat Ashloek was in possession of twenty-five acres; that Tarlton Barnes was in possession of the residue; that the defendants made no joint entry. The court here compelled the plaintiff, on motion of defendants, to elect which of the defendants he would proceed against. He elected to proceed against Tarlton Barnes and .the suit was dismissed as to the others.
    The defendant introduced, against the objection of plaintiff, a deed dated March 30,1855, executed by the register of lands of the state of Missouri. By this deed a portion, one hundred and forty acres, of the land in suit was conveyed to John H. Hickam. This deed was based upon a sale by Douglass, the sheriff of Boone county, for the taxes of said land for the year 1851. Hickam conveyed the land by deed dated September 5, 1857, to the defendant Tarlton Barnes. The defendant also introduced, against the objection of plaintiff, a deed, dated September 3, 1844, from E. A. Hamilton, then sheriff of Boone county. By this deed the land in suit, together with twelve other tracts, were conveyed to one E. T. Russell. The sheriff made this deed in pursuance of a sale by him of said tracts for the taxes of the year 1842. The tracts, as appeared from the deed, were assessed to different persons ; they were sold in the lump, and for an aggregate amount of taxes, the amount of taxes due upon each separate tract not appearing.
    The plaintiff, in rebuttal, after reading extracts from the advertisements sent out by the register of lands, showing the manner in which the land in controversy was described, and extracts from the assessor’s books, introduced Joseph B. Douglass, former sheriff of Boone county, as a witness. He testified that he did not himself give notice of the sale of lands for the nonpayment of the taxes of the year 1851 by setting up twenty slips of advertisements at the most public places in the different townships in Boone county; that he supposed this was done by his deputies ; that he was in the habit of sending out the twenty slips required to be set up in the different townships by his deputies, and by other persons; that he set tip one of said slips on a column at the courthouse ; that he did not put up at the court-house one of the four general advertisements sent him by the register containing a list of all the lands advertised for sale in the state for the nonpayment of taxes for the year aforesaid ; that he kejff said general list in his office subject to the inspection of any one who desired to look at it; that in the sales of lands made by him for the nonpayment of taxes he did not sell them before the court-house door, but in his office; that he recollects the sale of the land in controversy; that he sold said land in his office whilst sitting at his table; that it was bought by John Hickam for the sum of two dollars and fifteen cents, he being the best bidder; that he was in the habit of continuing the sales of land from day to day until all were sold; that the lands were not; sold regularly, one tract after another, but that any one coming into his office and naming a tract advertised for sale that he desired to purchase, the same was immediately put up and sold to him who would take the smallest portion thereof and pay the taxes, penalties and costs thereon; that whilst he was sheriff of Boone county he kept the office of sheriff in a room in the court-house, at the front end of the building ; that the door of the office opened into a hall eight or ten feet distant from the court-house door ; that he could not- say whether when he sold the land in controversy the door of the office was shut or open ; that he was not in the habit of making public proclamation of the sale of land for taxes, nor did he do so at the time the tract in controversy was sold; that from time to time, when sales of lands were about to take place, he would cause the courthouse bell to be rung.
    The plaintiff moved the court to declare the law as follows : “ 1. The register’s deed to Hickam, not having his private seal attached thereto, passed no title to Hickam. 2. In order to constitute a valid sale of the land in controversy the law regulating the sale of land for taxes must have been strictly complied with, and if there was an omission of any of the prerequisites to authorize a deed to be made, then said sale is void and passes no title to the purchaser. 8. The land in controversy not having been properly described by its assessment for the year-, as required by law, the sale made of said land for the nonpayment of the taxes for said ■year is invalid and void. 4. If the land in controversy was not legally described in the list required to be certified to the register of lands, or in the advertisement thereof by the register of lands, or in the deed of conveyance under which said defendant claims, by its township, range, section, fractional part of section, or other legal subdivision thereof, then they will find for the plaintiff as to the one hundred and fifteen acres claimed by the defendant Tari ton Barnes. 5. If the collector failed to set up twenty slips; setting forth the lands and town lots advertised for sale in his county and forwarded to him by the register, at the most public places in the several municipal townships of the county, then they will find for the plaintiff as to the one hundred and fifteen acres •claimed by defendant Tarlton Barnes. 6. If the collector failed to put up at the court-house door a copy of the general advertisement of all the lands advertised for sale for nonpayment of taxes transmitted to him by the register, then the sale of the land in controversy by the collector was invalid and passed no title to the purchaser. 7. Unless the land in controversy was sold by the collector publicly' before the court-house door as required by law, his deed is void and passes no title to the purchaser. 8. The deed from the sheriff Hamilton, to Russell showing upon its face that all the lands conveyed therein were sold in a lump and in not otherwise complying with the requirements of the law, the same was void, and passed no title to the purchaser.” Of these the court gave those numbered two, five and seven, and refused the others.
    The defendant moved the court to declare the law as follows : “ 1. It devolves on the plaintiff to prove title in himself to the land in controversy. 2. The land in controversy having been originally entered by Burckhart, it devolved on the plaintiff to prove a regular chain of title from' said Burck-hart by deeds of conveyance, and no deed having been shown from Burckhart, the plaintiff is not entitled to recover. 3. The marshal’s sale and deed to Lindell did not pass the title to the land in controversy to said Lindell. 4. The register’s deed to Hickam is prima facie evidence of title in fee simple in said Iiickam to the land in controversy, and the defendant’s deed from Hickam for said land vested Hickam’s title in the defendant. 5. If the court finds that the defendant was in possession of the land, claiming title under a deed from Hickam, then the defendant had a right to protect himself by an outstanding title, and for this purpose the sheriff’s deed to Russell is prima facie evidence of title in fee in said Russell as against said plaintiff.” Of these the court gave those numbered one, four and five, and refused those numbered two and three.
    The court found for the defendant.

      Guitar, Gordon Sf Rollins, for plaintiff in error.
    I. The rule prescribed by our statute making the register’s deed prima facie evidence of title in fee simple in a purchaser at a tax sale, and devolving the onus of proof upon the parties claiming adversely to such deed, is a wide departure from the well, settled principles of the common law, and in direct opposition to the rule requiring “ that all essential links in every chain of title, whether they are evidenced by records or deeds, or rest merely in parol, must be affirmatively proved by the party who sets up the title.” No title passed by the sale and conveyance to Hickam. The twenty slips, required by the statute, of the advertisement under which the land was sold, were not set up by the collector. (See Sess. Acts, 1847, p. 118, § 5.) Douglass’ evidence is ample to negative the fact that the twenty slips were set up. Plenary evidence is not required in proving a negative averment. (Blackwell on Tax Titles, 603.) The collector did not set up at the court-house door as required by the statute one of the four general advertisements comprising all the delinquent lands for the year 1851. (Sess. Acts, 1847, p. 118, § 5.) The land in question was not publicly exposed to sale by the collector before the 'court-house door, but was sold privately at his table in his office. (Sess. Acts, 1847, p. 119, § 10 ; Blackwell on Tax Titles, 312, 322.) The description of the land contained in the advertisement, as also in the deed to Hickam, is vague and uncertain. It is insufficient to enable a surveyor to locate it, to authorize the sale or pass the title under it. (Blackwell on Tax Titles, 267, 268.) The court erred in permitting the deed from the sheriff Hamilton to Russell to be read in evidence. No title passed under that deed. The act of 1843, under which this sale was made, required that only “ so much of each tract of land or town lot should be sold as would pay the taxes, interest and costs due upon the same. (Sess. Acts, 1843, p. 138, § 2.) This question is fully settled in the case of the State v. Richardson, 21 Mo. 420.) The sale in that case was made under the act of 1847. The court erred in refusing to give instructions numbered one, three, four, six and eight, asked for by the plaintiff, for the reasons already stated. The marshal’s sale under which Lindell purchased was valid and passed the title to Lindell. (Kennerly et al. v. Shepley, 15 Mo. 640.)

      J. M. Gordon, for defendant in error.
    I. It devolved on the plaintiff to prove title in himself to the land in controversy. The land having been originally entered by Burckhart, it devolved on the defendant to prove a regular chain of title from said Burckhart by deed of conveyance to entitle him to recover the land. The sale of the land by the marshal to Lindell passed no title to the land. The sale was made in St. Louis and the land is situated in Boone county, and was not properly described in the notice of sale. The register’s deed to Hickam is prima facie evidence of title in fee simple in Hickam to the land, and Hick-am’s deed to the defendant Tarlton Barnes vested Hickam’s title in the defendant. The defendant Tarlton Barnes was in possession of the land, claimed title thereto under a deed from Hickam, and had the right to protect himself by an outstanding title; and for this purpose the deed from Hamilton to Russell is prima facie evidence of title in fee in Russell against the plaintiff. The deed from Hamilton to Russell is a valid deed and passed the title to the land to Russell. There is nothing in this deed showing that the several tracts of land embraced in the deed were sold in a lump, and the court can not say that the several tracts mentioned in the deed were sold in a lump, from any thing which appears in this cause. There was no joint entry or joint possession by the defendant of any part of the land. The court, therefore, properly required the plaintiff to elect as to which of the defendants he would proceed against and to dismiss his suit as to the other two defendants.
   Scott, Judge,

delivered the opinion of the court.

There was no specific objections made to the instruments by which the plaintiff’s title was shown. Objections to legal instruments as evidence must be specific and made in the court below, as they can not be noticed here for the first time. The act of March 2, 1821, authorized the purchasers of public lands to relinquish their purchases, and although Christopher Burckhart was the original purchaser of the tract in controversy, yet the record shows that Angus L. Langham received the final certificate of entry as the assignee of Burckhart. The plaintiff claims through Langham, and there was no specific objection to the deed of the United‘States marshal conveying Langliam’s interest to Lindell, from whom the plaintiff claimed. We see no objections to the proceedings of the marshal, and it is not our business to see them unless they are first pointed out and determined in the inferior court. Sales conducted in the manner of that now under consideration have received the sanction of this court. (Kennerly v. Shepley, 15 Mo. 640.)

As one of his defences, the defendant relied on a sheriff’s deed for taxes as an outstanding title. This deed was made on the 3d day of September, 1844, to Francis T. Russell for tlie taxes due on the land for the year 1842. It appears that the deed contained thirteen tracts or parcels of land, which were assessed in the names of different persons ; and it did not appear but they were owned by different individuals. The aggregate amount of the taxes due on all the tracts is only stated. It is obvious that this deed can not be sustained. If even all the lands belonged to one person, such a sale would be oppressive. The owner might be willing to redeem a portion of the tracts, which he could not do; as the transaction stood as a single sale, the owner would be obliged to redeem all or none. How much would the confusion of the transaction be aggravated, if the lands were owned by different persons ? We do not hold that a purchaser must take a separate deed for each tract purchased by him at a sale, but he must take a deed- so worded as not to embarrass the owner’s right of redemption or clog it with conditions not imposed by law.

The defendant also claimed under a register’s deed dated 80th of March, 1855, on a sale made by the collector of Boone county, on the first Monday of October, 1852, for the taxes of the year 1851 due on the said land. John Hickam became the purchaser at the sale, and conveyed to the defendant. Some of the objections to this deed are founded on extrinsic evidence. Can not the parties see how this court is embarrassed in revising cases like this, when they have been tried without a jury ? A party produces evidence in support of a certain hypothesis; the evidence is received, and instructions are based upon it favorable to the party offering it; and notwithstanding they are given, a verdict is found against him. Under these circumstances it is impossible for this court to ascertain the ground of the action of the inferior court. If the plaintiff would waive his jury trial, why did he not set forth the circumstances in which an instruction under which the collector made the sale and call upon the court to declare whether a sale in his office was a compliance with the law ? As the case now stands, the instruction, to the effect that the sale must be before the court-bouse door, is undoubtedly correct, for it is a statutory requirement ; but how does it throw any light on the case, and how are we embarrassed in reviewing the instructions of this case if we can believe that the court placed any confidence in the truth of the collector’s statement ? If the printed advertisement of the list of all the taxable lands in the state was not put up as the act of 1847 required, how can the sale be supported ? So of the twenty slips required by law to be put up. The evidence, however, in regard to these may not have been sufficient to satisfy the mind that they were not put up.

As to the description of the land, we do not feel willing to give any opinion as to its sufficiency. It does not appear how the tract was reduced to one hundred and forty acres. If the plaintiff had no more than was sold, or more than was sold, let the fact appear. All the facts in relation to this matter should be set forth so as to form an opinion upon it.

As to the compelling of the plaintiff to elect against which of the defendants he would proceed, it will be observed that the defendants set up in their answer the defence that they held portions of the premises in severalty, and denied the joint occupancy. If so, they could not be jointly sued. But the facts of the answer must be proved ; and when they were found true, then the question would arise against which of the defendants the plaintiff would take judgment. (Jackson v. Hagen, 2 Johns. 441; Fosgate v. The Herkimer Manufacturing Co. 2 Kernan, 580; Vorhies N. Y. Prac. 598.)

Judgment reversed and remanded ;

'the other judges concurring.


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    Dow’s Executor, Plaintiff in Error, v. Spenny’s Executor et al., Defendants in Error.
    1. In the execution of a promissory note a person may adopt and ratify the signing of Ms name hy another.
    2. In a suit on a promissory note in which the defendant sets up as a defence that his name was forged hy one of the joint makers, the defendant can not show, in support of his defence, that the alleged forger was a fine penman and had great skill in imitating the handwriting of others, so as to deceive even the person whose name he forged; nor can it be shown that such person had committed other forgeries.
    3. Nor would it be competent for the plaintiff in such case to introduce in evidence papers known to he in the handwriting of the defendant in order that the jury might compare the signature upon the paper with that upon the note sued on.

      Error to Cooper Circuit Court.

      Douglass 8f Hayden, for plaintiff in error.
    I. The court erred in refusing the instructions asked by plaintiff. The liability of the defendant is placed in these instructions upon two grounds : 1st, ratification or adoption of the act of Norris in signing his name to the note; 2d, fraud committed by Spenny in inducing the plaintiff to believe that his signature was genuine, whereby she was misled to her prejudice. There was evidence showing a ratification or adoption. (See 1 Am. Lea. Cas. 572-4; 7 Humph. 224; Story on Ag. § 160, '253-7; 17 Mass. 1, 33 ; 4 Esp. 226 ; Greenl. Ev. § 196.) Spenny misled plaintiff to her prejudice. (25 Mo. 386; 24 Mo. 223; 22 Mo. 85; 1 Smith L. C. 177; 1 Sto. Eq. § 384-7.) He is estopped to deny the genuineness of his signature, or to set up the defence of forgery. (See 2 Smith L. C. 531; Sto. Eq. 385; 1 Greenl. Ev. § 27, 207 ; 19 Mo. 204.) The question of fraud and ratification ought to have been submitted to the jury. The instructions given to the jury misled them. The statute of frauds has nothing to do with the case. (14 Mo. 482 ; 16 Mo. 273.) The court committed error in permitting defendants to introduce as evidence the fact that Norris was “ a skillful penman; that he could imitate almost exactly the signatures of others, and was capable of committing forgery so well that the person whose name was forged would be deceived by it.” Also in refusing to permit plaintiff to show that the signatures of Brent and Keyser, sureties on said note, were genuine. Also in refusing to permit plaintiff to exhibit to the jury the paper with the genuine signature of defendant Cope. (1 Greenl. Ev. § 581; 14 Mo. 166.)

      Adams, Stephens Sf Vest, for defendants in error.
    I. The refused instructions asked by the plaintiff were based upon the erroneous assumption of an estoppel in pais, when there was nothing in the case to warrant such a conclusion. To constitute such an estoppel, there must be, first, an admission inconsistent with the evidence proposed to be given on the claim offered to be set up; second, an action by the other party upon such admission; third, an injury to him by allowing such admission to be disproved. (See Dorrell v. Odell, 3 Hill, 219 ; Taylor & Mason v. Zepp, 14 Mo. 488 ; Pickard v. Sears, 6 Ad. & El. 469 ; Hearn v. Rogers, 9 Barn. & Cress. 577; Meriwether v. Lewis, 9 B. Monr. 177.) The note sued upon was the note of Norris alone, and the plaintiff must look to him for payment. There is no evidence that he is not able to pay it, and if there was, it could not be used to the prejudice of these defendants. As the names of Spenny and Cope are forgeries, this note, as to them, is a mere blank piece of paper ; and being the note of Norris, any promise by the defendants or either of them to pay Norris’ note was within the statute of frauds, and therefore the instructions for the defendants were properly given. (Jones v. Walker, 13 B. Monr. 360; 3 Mete. 396.) The question before the jury was whether the names of Spenny and Cope were forgeries, and evidence was given tending to show that they were forgeries committed by Norris himself with such skill and so similar to the genuine signatures as to require the strictest scrutiny to detect them, and in this connection the evidence of Norris’ skill in such matters was offered, and it was surely competent and the very best evidence that could be given. The paper containing Cope’s signature, offered to the jury as a comparison, was properly excluded. . A party has no right to make his own selections of handwriting for comparison; and in fact no writing can be exhibited for this purpose except such as form a part of tbe case and are properly before tire jury as original evidence. To allow a party to make bis -own selections would be unjust, as unfair specimens would always be selected. (1 Greenl. Ev. 649, and cases cited; 7 B. Monr. 270.)
   Scott, Judge,

delivered the opinion of the court.

This is a suit on a promissory note, and it is alleged that the defendant Cope and Weedon Spenny, the testator of the defendant, by their promissory note promised to pay the plaintiff the sum stated in the note. Stephens denies that his testator executed the note sued upon, and that it is or was his act. Cope denied that the note was his or that the plaintiff is entitled to judgment against him. A witness, who had seen Spenny and Cope write, was of the opinion that their signatures to the note wHi genuine. There was other testimony to the same effect. The note sued on was signed first by W. W. Norris, and after his name follow the names of others and of Cope and Spenny. Norris was a son-in-law of Spenny, and absconded some twelve months after the date of the note, which was payable twelve months after date, which was the 25th of October, 1856. The note was presented to Spenny by an agent of the plaintiff to know if his signature was genuine. Spenny remarked, after having examined it, that several notes had been presented to him which had his name signed to them, but that his name to such notes had been forged by W. W. Norris; that he did not like to speak of the forgeries committed by Norris, as it was a delicate subject, Norris being his son-in-law, having at different times married t^wo of his daughters. He requested the agent not to be uneasy, or give himself any trouble about the note ; that it is and was all right, and would be paid, and promised to pay his proportion of it. A witness, Dow, having-expressed the opinion that the signature of Cope to the note was genuine, the plaintiff, in confirmation of his evidence, offered a paper in the possession of the witness, known to be signed by Cope, in order that the jury might compare the signature to the paper with that to the note. This paper was excluded by the court. Evidence on the part of the defendants was given tending to show that the signatures of Spen-ny and Cope were well imitated, but that they were not genuine and had been forged by Norris. There was also given to the jury evidence showing that Norris was a skillful penman and could imitate exactly almost the signatures of others, and capable of committing forgery so well as to deceive even the person whose name was forged. The admission of this evidence was excepted to by the plaintiff. There was a verdict for the defendants.

All of the instructions will not be noticed, as they are numerous, and, from the state of the pleadings, could not legally affect the determination of the controversy. The only matter in issue was the execution of the note sued on by I Cope and Spenny. TJjjere was no foundation in the pleadings for any other instruction than one relating to the execution of the instrument on which the suit was founded. There is no ground for an estoppel. If Spenny had assured a third person that his signature was genuine, and that person had paid value for the note in consideration of such * | assurance, there might be some room for the doctrine of p estoppel.

Standing as the case did before the jury, the first instruction given by the court for the defendant was clearly erroneous. The instruction was to the effect that it devolved on the plaintiff to prove that the signatures of Cope and Spen-ny to the note were genuine. Now what idea did the court attach to the word “ genuine ?” Was it intended to signify that the names must have been written by the parties themselves and with their own hands, and that they could not by adoption make a signature of their name made by another their own act ? If such was the design of the instruction, it was not the law. If such was not its purpose, then it is erroneous as tending to mislead the jury. It is competent to a person"to make a note his own either by signing it with his own hand or by adopting the signing made by another in his name, although without any previous authority. There was evidence before the jury from which they should have been left to determine whether Spenny did not adopt the act of Norris. Unless Spenny either signed .the note himself, or made the authorized signature his own by adoption, it is clear that there is no foundation in the pleadings for a judgment against him, and therefore we do not see what the statute of frauds and perjuries has to do with the case.

We find the law, so far as we have been enabled to examine, against the admission of the evidence relative to the skill of Norris in imitating the handwriting of others and his capability of committing forgery. In the case of Balcetti v. Serane, Peake’s N. P. 192, it was held that in an action against the acceptor of a bill of exchange, who defends himself on the ground of his acceptance being forged by another, evidence that that person forged the acceptor’s name to an other bill and absconded on that account is not admissible. The case of Rowt’s adm’r v. Kile’s adm’r, Gilmer, 202, would seem to intimate a contrary doctrine; but the subsequent case of Viney v. Barss, 1 Esp. N. P. 292, meets the point of distinction made in the case in Virginia, and holds that when a party defends a bill of exchange on the ground that his acceptance has been forged, it is not admissible evidence that the party who negotiated such bill had been guilty of other forgeries.

The evidence in relation to the comparison of handwriting was properly excluded, as the fact did not bring the case within the rule as stated by Greenleaf. (1 Greenl. Ev. 581.)

The other judges concurring, judgment reversed and remanded.


text:
    The State, Respondent, v. Davis, Appellant.
    1. Where an indictment contains two counts, one founded on the 35th, the other upon the 39th, section of the second article of the act concerning crimes and punishments, (R. C. 1855, p. 665, 567,) and hoth counts relate to the same transaction, the defendant is not entitled to demand that the prosecution shall select the count upon which the defendant shall be tried.
    2. Every felonious act must be charged to have been feloniously done; this requirement will be satisfied, in an indictment founded upon the 39th section of the second article of the act concerning crimes and punishments (R. C. 1855, p. 567,) by an averment that the assault was made feloniously and that the striking, cutting and thrusting were done feloniously, although the maiming, wounding, disfiguring or doing great bodily harm may not be directly charged to have been done feloniously.
    3. Principals in the first and second degrees are in law equally guilty; there is no difference in the grade of their offences. The one charged as principal in the first degree, if properly indicted himself, can not take advantage of defective averments, if any, against those indicted as principals in the second degree.
    4. It is not good cause of challenge to a juror in a criminal case that he has formed or delivered an opinion on the issue or any material fact to be tried, if it appear that such opinion is founded only on rumor and not such as to prejudice or bias his mind. (R. 0.1855, p. 1191, § 14.)
    5. Testimony can not be introduced to show that a witness had made statements contradictory of those made upon the witness stand, unless a foundation be first laid for such testimony by calling the witness’ attention to the matter about which he is to be contradicted and thus giving him an opportunity to explain.

      Appeal from Osage Circuit Court.

    It is sufficient to state, in addition to the facts stated in the opinion of the court, that the court, at the instance of the State, gave the following instructions bearing upon the second count of the indictment: “ 2. If the jury believe from the evidence that the defendant within three years nest before the finding of this indictment, and in Osage county, wilfully and feloniously made an assault with a knife, being a deadly weapon, likely to produce death or great bodily harm, and inflicted a wound upon the face of said Berry, or upon the side, or upon any other part of the body of the said Berry, whereby the said Berry was wounded, disfigured, or received great bodily harm, then the jury must find him guilty under the second count of the indictment, and in that case must assess his punishment by imprisonment in the penitentiary, &c. 5. Although the jury should believe from the evidence that Berry struck defendant with a knife or snapped a pistol at him, yet if the defendant was pursuing bim to assault him or to inflict on him great personal injury, and there was reasonable cause for Berry to apprehend immediate danger from such assault or injury, then Berry had a right to strike or shoot, if necessary, in his self-de-fence ; and if, under such circumstances, defendant assaulted Berry as described in the first or second instruction, he was not justified in so doing. 6. Mere words of insult or banter, even if Berry had first used them, constitute in law no provocation or excuse to justify an assault or wounding.”
    The court, at the instance of defendant, gave the following instruction bearing upon the second count: “ 1. Although the jury may believe from the evidence in this cause that the defendant Thomas Davis inflicted the wounds upon the person of Robert Berry, yet if they further believe that they [were] inflicted in the lawful defence of himself; or if Davis had reasonable cause to apprehend a design on the part of Berry to do him (Davis) some great personal injury, and that Davis had reasonable cause to apprehend immediate danger of such design being accomplished, they will find the defendant not guilty.”
    The court refused many instructions asked by the defendant. It is unnecessary to set them forth.

      Ewing Sf Parsons, for appellant.
    I. The court should have quashed the second count of the indictment. It does not charge the maiming, wounding, disfiguring, &c., to have been done feloniously. (See State v. Eeaster, 25 Mo. 325; State v. Leonard, 22 Mo. 449.) It also first charges that the codefendants of Davis were principals in the first degree, and afterwards charges said codefendants as principals in the second degree.
    II. The court should have declared the jurors Shackel-ford, Miller and others incompetent to sit as jurors. They said that their opinion in regard to the issues were so fixed in their minds as to require evidence to rpmove it.
    III. The court should have permitted the defendant to contradict the testimony of Mrs. Rosson.

      IY. The court erred in giving the second instruction. The felonious assault was not the gist of the action ; it was the felonious wounding. The instruction takes from the jury all consideration of provocation or self-defence. There was evidence tending to show that the wounding, disfiguring, <fec., was done in self-defence. The fifth instruction was erroneous. The court should have given the instructions asked by defendant.
    Knott, (attorney general,) for the State.
    I. The second count of the indictment is good. Principals in the first and second degrees are equally guilty. The offence may be charged as the joint act of all, and the part performed by each then set forth, or the part that each performed may be first set out and then the conclusion drawn that all are guilty. The word “ feloniously”' placed before “ strike, cut and thrust” relates to and is descriptive of the wounding, disfiguring, &c., mentioned as the consequence of the striking, cutting, &c., and need not be repeated. (2 Hale P. C. 185; Bac. Abr. tit. Indict. 556; State v. Mc-Grath, 19 Mo. 678.) In the case of the State v. Feaster, the act done with the weapon was not charged to have been done feloniously. If the defendant feloniously struck, and the wounding was the immediate consequence of the stroke, it would be absurd to say that the wounding was not feloniously done, or that it was not so charged.
    II. The court properly refused to compel the circuit attorney to elect upon which count of the indictment, he would proceed. (State v. Jackson, 11 Mo. 544 ; State v. Leonard, 22 Mo. 449; State v. Porter, 26 Mo. 201.)
    III. The jurors Shackelford and other were competent. There is nothing in the fact that “ it would require evidence to remove the opinions they had entertained.” (Seo R. 0. 1855, p. 1191, § 14; State v. Baldwin, 12 Mo. 224.)
    IY. The court properly refused to permit the witness Davis to detail a conversation he had with Mrs. Rosson. No foundation was laid for contradicting the witness with a view to discredit her. (Greenl. Ev. § 462; Roscoe’s Or. Ev. 183.)
    Y. The instructions given to the jury were correct. There was no error in refusing the instructions asked by defendant.
   Scott, Judge,

delivered the opinion of the court.

The defendant Davis was indicted, with three others, under the 35th and 39th sections of the second article of the act concerning crimes and their punishments. There were two counts in the indictment; the one on the 35th, and the other on the 39th of said sections. The first charges a wilful felonious striking with a dangerous weapon, on purpose and of malice aforethought, with the intent, then and there, Robert Berry .wilfully, feloniously, on purpose and of his malice aforethought to kill. The second count charges that the defendant, with three others, on, &c., at, &c., in and upon the body of one Robert Berry, wilfully and feloniously an assault did make; and that he, the said Davis, with a certain knife, then and there being a deadly weapon which he, the said T. Davis, in his right hand had and held, the said Robert Berry, in and upon the left side, &c., then and there, wilfully and feloniously did strike, cut and thrust, giving to the said Robert Berry, then and there, with the knife aforesaid, in and upon the left side, &c., several dangerous wounds, whereby he, the said Robert Berry, was then and there greatly wounded and disfigured, and received great bodily harm; and that the said John Davis, William Gilmore and Oscar D. Hancock, then and there, wilfully and feloniously were present aiding, helping, abetting, assisting and maintaining the said Thomas Davis the felony aforesaid, in manner and form aforesaid, to do and commit, contrary to the form, &c.

Thomas Davis, who is charged in the indictment as the principal in the first degree, elected to be tried separately, was convicted and appealed to this court. Before his election of a separate trial a motion was made to quash the indictment on grounds, some of which did not affect this defendant, and he can not therefore avail himself of any advantage to be derived from them. If he is properly indicted as a principal in the first degree, he can not complain that those joined as principals in the second are not properly charged with an offence. The subject has of late been so frequently before the court, that it was generally supposed to be settled, that there is no difference in the guilt of principals in the first and second degree. A principal in the first degree is he who actually commits the crime. A principal in the second degree is he who takes not part in the actual commission of the offence, but is present aiding, abetting and assisting him who does. As the guilt of these parties is in the eye of the law equal, they are all punished alike; and if he, who is only present aiding and abetting those who actually commit the offence, is indicted as the actual perpetrator of it, the indictment is good, and is supported by proof of his presence and countenance, for they in the contemplation of the law are all principals. (State v. Phillips & Ross, 24 Mo. 475.)

The indictment as against the principals in the second degree has been compared with the approved precedents, and it substantially conforms to them. (3 Chitty’s Crim. Law, 792.) The words of the section, under which the second count of the indictment is framed, are — “if any person shall be maimed, wounded or disfigured, or receive great bodily harm, &c., by the act, procurement or culpable negligence of another,” &c. Now these words do' not require as a part of the description of the offence that the wounding should be felonious. Every felonious act must be charged to have been done feloniously, and the crime here charged is a felony; but this requirement is satisfied by the averment that the assault was made, and that the striking, cutting and thrusting was feloniously done. If the blow which causes a wounding is inflicted feloniously, the wound, the consequence of the blow, must have been made with a felonious intent. Chitty says, it is not necessary to repeat the words “ felo-niously and of malice aforethought” to every allegation; for if the assault be stated to have been thus made, and the indictment proceed to ayer that the defendant then and there struck, &c., it will be good without repeating them, because the acts are sufficiently connected. (3 Chitty C. L. 738; 4 Coke, 41, b.)

The defendant had no right to compel the State to elect on which count in the indictment she would try him. As but one offence was committed, and the two counts related to the same transaction, it was entirely competent to the State to vary her charges by means of several counts, although under different sections of the statute, so as to meet the proof which might be produced. (State v. Porter, 26 Mo. 201.)

The objection to the competency of the jurors can not be sustained. The jurors were examined on their voir dire, and stated that they had formed an opinion, but it was upon rumor, and was not such as to bias or prejudice their minds. This has long been the law in this state, and such jurors have invariably been held competent; and the course of decision will not be varied because complaisant men, in a long course of cross-examination by counsel, may give an answer somewhat favorable to those who may wish to exclude them. Such is the growing aversion to serving on juries, that unless this rule is adhered to it will be impossible to obtain competent jurors.

Although the bill of exceptions states that a ground was laid in the examination in chief of Mrs. Rosson for contradicting her, yet that was by way of recital; and we do not find in the evidence of that witness as preserved in the record any sufficient foundation for that purpose. A witness, who will give 'contradictory accounts of a transaction, can not be relied on, but it is very unsatisfactory evidence to prove that a witness has contradicted himself, unless the witness is first apprised of the matter about which he is to be contradicted and of the circumstances and occasion of the declaration. By giving him an opportunity, it may be in his power to explain the matter, to show that he was mistaken, and thereby remove any improper impressions his apparently contradictory declarations may have produced.

As the defendant was found not guilty of the first count in the indictment, it will not be necessary to review the instructions founded on the law peculiar to that count. This will relieve us of the necessity of going into the subject of malice involved in the section on which that count is founded.

The complaint of the second instruction given on the part of the State is in a great measure a revival of the objections urged against the second .count on the motion to quash the indictment. Without repeating what has been already said in relation to the sufficiency of the second count of the indictment, it may be remarked that this indictment avoids the objection taken to that of the State v. Feaster, 25 Mo. 325; for it alleges that both the assault was made feloniously, and that the defendant was feloniously stricken, bringing it within the very requirement of that case.

If the second instruction given for the State had stood alone, it could not under the circumstances have been sustained. But the defects of that instruction were cured from the manner in which the first instruction given for the defendant was framed. It was so worded that it must have drawn the attention of the jury to the second instruction given on the part of the State, and the two would necessarily be understood as standing together.

It has already been observed, that the instructions on the subject of malice are out of the case, as the defendant was acquitted of the first count, the only one on which it was material to consider that matter.

The first instruction given for the defendant having stated the circumstances under which his assault on Berry would have been justifiable, the court properly refused the other instructions on that subject, as they were not only unnecesary, but failed to state in a proper manner the facts required by the statute in order to mitigate a felonious assault to one that was justifiable.

Judge Napton concurring,

judgment affirmed.


text:
    The State, Appellant, v. Herreford, Respondent.
    1. State y. Davis, ante, p. 391, affirmed.

      Appeal from, Barry Circuit Cowrt.

    This was an indictment founded upon the 39th section of the second article of the act concerning crimes and punishments.
    Knott, (attorney general,) for the State.
    I. The indictment is sufficient. (Jennings y. State, 9 Mo. 852; State v. McGrath, 19 Mo. 679; 11 Mo. 582.)
   Scott, Judge,

delivered the opinion of the court.

There is but one offence charged in the indictment. An indictment similar to this was held good at this term in the case of the State v. Davis.

Judge Napton concurring,

the judgment will be reversed and the cause remanded, with an order that the defendant appear at the nest term of the Barry circuit court to answer the indictment.


author: Ewing, Judge,

text:
    Inge, Respondent, v. Hance, Appellant.
    1. Parol evidence is inadmissible to show that a note absolute on its face is-payable at a time different from that stated therein.

      Appeal from Phelps Circuit Court.
    Henderson, for appellant.

      C. Jones, for respondent.
   Ewing, Judge,

delivered the opinion of the court.

This was an action on a promissory note dated July 2, 1858, payable one day after date. The answer admits the execution of the note, but alleges an oral contemporaneous agreement between the plaintiff and defendant by which it was not to be paid until after the lapse of six months, unless the defendant’s “ circumstances in life ras to responsibility should change,” and it is averred that they have not changed. The answer was, on motion, stricken out. This case involves the same point decided at this term, in the case of Chrisman & Smart, adm’rs of Smith, v. Thomas; and for the reasons given in that opinion, the judgment will be affirmed.

The other judges concurring.