author: ROY, C. PER CURIAM:

text:
    THE STATE v. W. E. MARION, Appellant.
    Division Two,
    June 20, 1911.
    1 INFORMATION: Obtaining Deed by False Pretense: Grantee Not Named. An information charging defendant with having, by false pretense and misrepresentations, induced one Dimit to part with and convey his land to another, withoht naming the grantee in the deed, is' fatally defective.
    2. -: -: Delivery. Where the information charges in the language of the statute, that defendant “did then and there feloniously, designedly, knowingly and fraudulently, with intent then and there to cheat and defraud the said David Dimit, obtain the signature of the said David Dimit to a certain instrument,” it sufficiently charges a delivery of the deed to defendant.
    3. FALSE PRETENSE: Exaggerated Opinion. Representations which are mere matters of opinion and exaggerated praise of the subject-matter cannot be made the basis of a criminal charge of false pretense. Representations by an agent that a certain 200-acre farm contained “80 acres of land in cultivation and 70 or 80 acres more in timber just as good if cultivated, fair house and bam, some orchard, in fact a good stock farm that is worth $3000,” made in a letter to the prosecutor on the strength of which he traded some lots to another for the farm, are matters of opinion, and cannot be made the basis of a criminal charge.

      i. -: Venue: To Man in Another State. Where the letter, upon which the charge of false pretense is based, was written to Dimit who was in Pennsylvania, and Dimit made out the deed conveying the lots to be exchanged for White’s farm, and leaving the grantee blank sent the deed, after signing and acknowledging it, to defendant Marion, with the understanding that he was to write in the name of the grantee and was not to deliver it until a deed from White was obtained, the crime, if any, was. committed in Missouri, and not in Pennsylvania; but it would be otherwise if the deed had been executed in complete form with the intent that the delivery to defendant would be a delivery to the grantee named, for then the depositing of the deed in the mail would be a delivery to the grantee.

      5. INSTRUCTION: Wrong Punishment: Ex Post Facto Amendment. An instruction directing the jury to fix defendant’s punishment at imprisonment in the penitentiary for a term not less than two nor more than five years, where the statute in force at the time the offense was committed declared the punishment should be imprisonment in the penitentiary not more than five years or a fine or imprisonment in the county jail, is erroneous. Although the instruction is in harmony with the statute as subsequently amended, it would be giving to the amended statute an ex post facto effect to make it apply to a previously committed offense.
    C. -¡ Referring to Information for Offense: False Pretense. An instruction, in the trial of a defendant for obtaining a deed by false pretense and misrepresentations, which does not tell the jury what false representations the defendant is charged with, but refers them to the information for their ascertainment, is erroneous.
    7. EVIDENCE: Deposition in Another Case: Obtaining Deed Under False Pretense. Defendant’s deposition, taken by the prosecutor in a civil suit brought by the prosecutor against defendant, to set aside the deed he is charged with having ob- . tained by false pretense, no prosecution having then been begun and he making no objection to testifying at the time on the ground that to do so would incriminate him, is admissible in evidence against him in a subsequent trial of the criminal offense based upon false pretense in obtaining the deed.
    8. -:--: -: Statute: Sec. 6360, R. S. 1909: Fraudulent Conveyance. Nor does Sec. 6360, R. S. 1909, make defendant’s deposition inadmissible in such case. The words “fraudulent conveyance” therein have a well-defined meaning in law, and refer always to fraud on the part of the grantor or vendor against the right of his creditors, or of purchasers from him, and do not refer to the act of inducing, by false representation, the owner of land to convey the same.
    Appeal from Barry Circuit Court. — lion. F. G. Johnston, Judge.
    Reversed and remanded.

      Mayhew & Sater for appellant.
    (1) The undisputed evidence in the case showed that the venue of the crime, if any had been committed, was in Pennsylvania, as the prosecuting witness testified that was the place where he and his wife signed the deed. In a prosecution for obtaining money or property hy means of false representation, the place where the money or property is obtained, without regard to where the representations were made, is the place in which the party should he prosecuted. State v. Shaffer, 89 Mo. 271; State v. Lichliter, 95 Mo. 402; State v. Gritzber, 134 Mo. 527; State v. Flanders, 118 Mo. 233; State v. Miller, 212 Mo. 79; Commonwealth v. Wood, 142 Mass. 459; State v. Briggs, 7 L. R. A. (Kan.) 278. (2) There is a variance between the deed described in the information and the testimony relative to the deed executed hy the prosecuting witness. In order to constitute the offense, there must he an intent to defraud at the time when the property or the signature to the instrument is obtained. State v. Norton, 76 Mo. 180; State v. Jackson, 112 Mo. 585. Under the evidence there was no intent to defraud. The testimony of all the witnesses who were acquainted with the farm testified that it was as good a farm as the defendant represented it to he. 12 A. & E. Ency. of Law, 824; State v. Norton, 76 Mo. 180; State, v. Jackson, 112 Mo. 585. The obtaining of property must he made hy the party accused or for his benefit, which was not the case in this instance. Ra,y v. Garrett Dears, C. C. 232; 6 Cox C. C. 260; 2 C. L. R. 106; 17 Jus. 1060; Bracey v. State, 64 Mo. 26. (3) The court erred in giving instruction 2. We especially call attention to the punishment prescribed in this instruction, which provided for imprisonment in the penitentiary for a term of not less than two years nor more than five years. Sec. 1927, R. S. 1899; sec. 1904, R. S. 1899; State v. Flanders, 118 Mo. 233; State v. Brossler, 139 Mo. 524; State v. Pickett, 174 Mo. 663; State v. McNerney, 118 Mo. App. 60. The Legislature of 1909' amended Sec. 1927 as to the punishment, hut the crime that the defendant is alleged to have committed was committed before the 1909 amendment. The Legislature has no power to change the punishment of an offense by statute' passed after it is committed. State ex rel. v. Willis, 66 Mo. 131; State v. Kyle, 166 Mo. 304. (4) Instruction 2 is erroneous, because it authorizes the jury to convict the defendant if they believe he made the false and fraudulent representations and false pretenses set forth in the information, when a number of the representations complained of were mere opinions and expectations of future happenings. The false pretenses, to authorize conviction, must be as to past or existing facts, not a mere promise as to the future. State v. Evers, 49 Mo. 542; State v. Vorbaek, 66 Mo. 168; State v. Peddy, 119 Mo. 425. (5) The information in this cause is defective on various grounds. Nothing alleged in said information constitutes a crime under our laws. The deed to which the signature of Dimit was alleged to have been fraudulently obtained is not sufficiently described. State v. Vorbaek, 136 Mo. 440; State v. McNerney, 118 Mo. App. 60; State v. Stow, 132 Mo. 199; State v. Pickett, 174 Mo. 663; State v. Phelan, 159 Mo. 122. (6) It is not sufficient that an indictment for obtaining money by false pretenses allege that by reason of false and fraudulent pretenses and representations of defendant, a certain person was induced to sell and deliver to such defendant certain articles or money, but must also charge that said person did deliver said property to defendant. State v. Kelly, 170 Mo. 151; State v. Phalen, 159 Mo. 122; State v. Hubbard, 107 Mo. 346. (7) It was an error for the court to permit the State to read the testimony of defendant taken in a deposition in a suit to set aside the deed in question. Sec. 6860, R. S. 1909.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
    (1) The information is valid and sufficient and properly charges the offense. Sec. 4565', R. S. 1909; State v. Barbee, 136 Mo. 440; State v. Flanders, 118 Mo. 227; State v. Feazell, 132 Mo. 176; State v. Pickett, 174 Mo. 673. (2) The trial court permitted the prosecuting attorney to introduce as evidence in chief the deposition of appellant taken before a notary public about a month before the filing of the information, appellant having been subpoenaed and sworn to testify before the said notary in a civil case filed with reference to the property mentioned and described in the information. Sec. 23, article 2 of the State Constitution provides that no person shall he compelled to testify against himself in a criminal cause. The court permitted the evidence to he introduced as a voluntary statement on behalf of the appellant. "Was the evidence a compulsory answer upon oath, or was it voluntary? The leading case upon the question here involved is found in People v. McMahon, 15 N. V. 384. A full discussion hearing upon this subject may he found in the following cases: State v. Faulkner, 175 Mo. 615; State v. Woodward, 182 Mo. 412; State v. Newcomb, 220' Mo. 66. The leading case in this State is State v. Young, 119 Mo. 520. See also Josephine v. State, 39 Miss. 650; Regina v. Wheater, 2 Moody C. C. 45; Rex v.'Merceron, 2 Starkie, 366; Wood v. State, • 3 S. W. (T!ex.), 336. The ground upon which this class of evidence is admitted is whether or not the evidence as given was voluntary.
   ROY, C.

— The defendant was convicted in the circuit court of Barry county for a violation of section 1927, Revised Statutes, 1899, and sentenced to two years in the penitentiary. The information was filed March 21, 1910, and charged that the defendant on the- day of March, 1909, obtained the signature of David Dimit to a warranty deed conveying said Dimit’s interest in eight lots in Dimit’s Addition to Monett in Lawrence county, by false representations as to 200 acres of land in Stone county, which were given in exchange to Dimit for the lots.'

The information is as follows (omitting caption):

“James Talbert, prosecuting attorney within and for the county of Barry and State of Missouri, acting herein under his oath of office and based upon his best information and belief, informs the court that W. E. Marion, on the --- day of March, 1909, at and in the county of Barry in the State of Missouri, did then and there feloniously, designedly, knowingly and fraudulently, with intent then and there to cheat and defraud one David Dimit, falsely pretend, represent and state to the said David Dimit that the owner of the Stone county land, meaning certain land in Stone county, Missouri, hereinafter described, has 200 acres of good strong land, 80 acres in cultivation that will raise 40 or 501 bushels of corn to the acre, and about 60 or 70 acres more in timber that is as good if in cultivation, fair house and barn, some orchard, in fact, a good stock and grain farm that is worth $3000; that he (meaning the owner of the Stone county land) offered to take the lots, belonging to the said David Dimit and $200 cash, the said David Dimit to assume a $1500 mortgage on the Stone county land; that the said W. E. Marion had made the owner of said land a $1500 ten-year loan; that there was about $100' accrued interest due; that it was a good trade for the said David Dimit and that he, the said W. E. Marion, could rent said land and it would bring an income all the time. And the said David Dimit, believing and relying upon the said false and fraudulent representations and pretenses so made as aforesaid by the said W. E. Marion to be true and being deceived thereby, was induced by reason thereof to then and there sign, acknowledge and deliver to the said W. E. Marion a warranty deed conveying all the right, title and interest of the said David Dimit in and to the following described land, to-wit: Lots 7, 8 .and 12 in block 1; lots 6, 7 and 8 in block 2, and lots 3' and 4 in block 3, all in Dimit’s addition to Monett, in Lawrence county, Missouri, said lots being then and there the property of the said David Dimit, and of the value of $875; and the said David Dimit, believing and relying upon the said false pretenses and representations so made as aforesaid by the said W. E. Marion, was induced by reason thereof to accept in exchange for the said deed of the said David Dimit above described, a deed from one W. White purporting to convey to the said David Dimit the said 200 .acres of land in Stone county, Missouri, described in said deed of W. White as follows, to-wit: The E. 1-2 of the 1ST. E. 1-4 and the S. W. 1-4 of the N. E, 1-4 and the N. W. 1-4 of the S. E. 1-4 and the N. E. 1-4 of the S. W. 1-4, section. No. 32, township No. 22, range No. 24, said deed of W. White purported to be subject to a mortgage or deed of trust for $1500 and a commission deed of trust (amount not stated) which the said David Dimit, as grantee in said deed, .assumed and agreed to pay; and the said W. E. Marion, by means of the said false pretenses and representations so made as aforesaid to the said David Dimit, which false pretenses and representations were then and there believed and relied upon by the said David Dimit, did then and there feloniously, designedly, knowingly and fraudulently, with the intent then and there to cheat and defraud the said David Dimit; obtained the signature of the said David Dimit, to a certain instrument in writing, to-wit, the warranty deed of the said David Dimit above mentioned, conveying all the right, title and interest of the said David Dimit in .and to the’said lots in Dimit’s Addition to Monett, in Lawrence county, Missouri; whereas, in truth and in fact, the said statements, representations and pretenses were wholly false and fraudulent, all of which the said W. E. Marion then and there well knew; whereas, in truth and in fact, the said 200 acres of Stone county land above described was not good strong land, but was poor thin land; whereas, in truth and in fact, there was not 80 acres of said land in cultivation that would raise 40 or 50 bushels of corn to the acre, but would probably raise 20 bushels to the acre under the most favorable circumstances; whereas, in truth and in fact, there were not'60 or 70 acres more of said land in timber that is as good if in cultivation; whereas, in truth and in fact, there were not a fair house and barn and some orchard on said lands, but there was a very poor house and barn practically worthless for the purposes for which they were built and no orchard whatever; and whereas, in truth and in fact, the said 200 acres of Stone county land was not then a good stock and grain farm that was worth $3000, but was a poor mountain farm not worth over $1000 or $1200; and whereas in truth and in fact, there was not only a $1500 mortgage with accrued interest on said lands, but there was an additional mortgage or deed of trust on said lands of the amount of $375; and whereas in truth and in fact, the said W. E. Marion nor no one else could rent said land so that it would bring an income all the time; all of which the said W. E. Marion then and there well knew. And so the said W. E. Marion, by means and by use of the said false pretenses and representations made to the said David Dimit as aforesaid, did then and there feloniously, designedly, knowingly and fraudulently, cheat and defraud the said D'avid Dimit; against the peace and dignity of the State.”

The defendant was a real estate and loan agent at Monett in Barry county; and as such had previously sold for Dimit the greater portion of the lots in Dimit’s Addition to Monett in Lawrence county. There were eight lots remaining unsold, and it was those remaining lots that were conveyed by the deed set out in the information. Dimit had previously lived at Monett, and at the time of the transaction in controversy had been living at Avilla, Pennsylvania, for about four years. Defendant was engaged, as agent for Dimit, in trying to sell or trade the remaining lots. The defendant wrote Dimit the following letter:

Monett, Mo., 3 — 23—’09.
Mr. David Dirnet, Avilla, Pa.
Dear Sir: — I went to West Plains Sat. to look at that farm. It looks like you had almost traded, hut I am going to be frank with you and say to you to do just as I would do if the lots were mine and the land would he mine. You were to give them $700 cash, 6 lots and assume $1675 principal and int. of a mtg. Now Dave, I would not give $2000 for the farm; it is not worth it and I can buy better for $1600, but if you trade with them your $2375 cash and 6 lots, you can’t afford to do it and never could come out on it. There is 8 or 10 acres of fair orchard, but has seen its best days, fair in fact; good buildings, but they are small. There is about 10 acres of land in a fair state of cult, and possibly 20 a. more that has been plowed, but not for years and is grown up with brush. The land is all white' ash, post oak soil just as poor as it can be. We have none as bad in Barry Co. and it is full of tight flint rock. True it is not but four miles from town, but to make a long story short I do not see where you could afford to give the 6 lots and assume the mortgage and I would not do it. I could have wrote you yesterday, but wanted to see the man that owns the 200 aeres I told you about. Now I got him to where he will give you a good trade. He has 200 acres of good, strong land, 80 acres in cultivation that will raise 40 or 50 bushels of corn and about-60 or 70 acres more in timber that is good if in cult. Pair house and barn, some orchard, in fact a good stock and grain farm that is worth $3000; it is ten miles north of Urbanette, Ark., in Stone county Mo., 4 miles north of my Stone county farm. I made him a $1500 10-year loan; there is about $100 accrued interest due sometime this spring. I think 1 could arrange to pay the loan off, although it is not privileged to pay it for -3 years. Now, ho has offered to take your 8 lots, and $200 cash and you assume the $1500 mortgage and accrued interest. Now Dave, I am practically certain if you will execute a deed to the lots, I can get his land and you assume the $1500 and int., and not pay him $200, or in other words, give your lots even for his equity and it is a good trade for you. I can rent it and it will bring you an income all the time and the land at West Plains would not bring in anything. . >-
I enclose deed in blank for the 8 lots; you execute it and return it to me. I feel sure I can get the 200 acres and know it will be a good trade for you. If you still want to trade with the West Plains people, make a deed in blank leaving out lots 3 and 4 in block 3. But let me hear from you at once, as there is a lot of corn land to brake on the 200 acres and it is time. There is no land on the 160 to rent to speak of; in fact, I do not believe any one would rent it unless It was to live in the house.
•Respt., W. E. MARION.
John Aulgar sends his regards. He is building some porches, for me and just went home. Dave, do not tell those fellows at West Plains,' but knowing as I did I could not advise the trade, but they tried hard to fix it with me, but I did not tell them what I would do. I told them I would report to you. The money is all they want and they would take 2 or $300 and let go and will let go for nothing soon.

Upon the receipt of that letter, Dimit executed a deed to the lots, acknowledged it, and mailed it from Avilla, Pennsylvania, to defendant at Monett. It was complete in every respect, except that the name of the grantee was left blank for defendant to fill, in accordance with the request in the letter. In August, 1969, Dimit received from the recorder the deed for the Stone county land executed by W. White. According to the evidence of defendant, one S. C. White owned the 200' acres, but the record title wa,s in his brother, W. White.

Dimit testified that he had never seen the 200 acres and relied on the statement in defendant’s letter. -The testimony for the State tended to show that the land was post-oak, rocky, hill land; that it rented in 1908 for $60 and was not rented in 1909 ,- that there were spots of good, rich land on it; that in one place there were 15 acres just a's good as anybody’s land; that there is a log house 16 by 16 feet, with an upstairs, and a barn about 60 by 24-feet, with about 70' acres in cultivation, and that it is worth from $3 to $6 per acre. There was no showing in State’s evidence whether there was 60 or 70 acres of timber land as good for cultivation as the land now in cultivation, but a witness for the defendant testified that the land not in cultivation was not as good as the other.

For the defendant, T. F. Wolfenbarger testified: “Well, I would call it tillable land and some gravelly; very good soil about the house, in fact all that I have even been over, which is not much. About 70 acres in cultivation, reasonably good land for that country. I have seen some tolerably good crops grow there and some very light, for we have some bad seasons. It is reasonably worth $15 per acre. The 70 acres will average more than 20 bushels of corn to the acre; 30 would be a good average for a' good season. There is a good peach orchard there.”

L.- C. Underwood testified: “It is a ridge farm, about 60 acres cultivated, a little spotted like, all ridge land. The timber is post oak and black oak. There were good crops both seasons I saw it. It is worth about $15 per acre.”

Wm. Eose testified: “There are 60 or 70 acres in cultivation. There is black oak, post oak, white oak and black-jack. The timber isn’t large. It is worth about $15 per acre.”

' The defendant testified: “In June, 1908, I was on the land to examine it for the puropse of making a loan on it. There was 30 or 40 acres of corn growing that gave, promise of' 40 or 50 bushel per acre. I thought there was a little better than 80 acres' in cultivation. There were from 501 to 100 fruit trees. I made a loan on the place to W. White. The lots were deeded to Mr. Walker White for some reason best known to Mr. S. C. White. There was a judgment against bim and he asked me to deed the lots to his brother Walker White. The land is worth $15 per acre. I did not tell Dimit the name of the owner, because I didn’t think he cared about it. The loan was made about January 1, 1909. There was a $1500 deed of trust and a $375 deed of trust on the land. The latter was a commission note. ’ ’

Dimit brought a suit in equity against Marion to set aside the conveyance, and on December 13, 1909, Marion was subpoenaed before a notary public, at the instance of Dimit to give his deposition, and he did give it, and his deposition was offered by the State in this case and objected to by the defendant, on the ground that the defendant was forced by process to attend and give his deposition in a civil suit, and for the further reason that the statute recites that when a party gives his testimony, such testimony shall not be used in a prosecution against him for the purpose of showing a fraudulent conveyance. The objections were overruled and the deposition read. In that deposition the defendant testified: “At the time Dimit made the deed, S. C. White owned the land, and the Dimit deed was sent to me with grantee blank, and I wrote the name of White as grantee therein on the day I got it. Mr. White gave me the deed to Dimit for the Stone county land the day that W. White signed the deed of trust and notes. I executed this deed in blank and gave it to S. O. White and Mr. White had the deed in his pocket and when I got the Dimit deed, he told me to close the deal. Either White or I wrote Dimit’s name in the blank. I wrote W. White ’a name in deed to the lots and gave it to S. O. White. In making the loan there was 2y2 per cent of the interest for ten years payable to me in installments secured by separate deed of trust on Stone county land. I bought all the lots from S. O. White and had the lots in controversy. He and I made a deal and I got the lots. W. White made three deeds to me for the lots, each deed having some of the lots in it and left the name of the grantee blank. The deeds were made April 17. I don’t know how much rent the Stone county land paid in 1906 or 1907 or 1908.”

Instruction numbered 2 given by the court is as follows:

“The defendant stands charged in the information with inducing one David Dimit, by means of false and fraudulent representations and false pretenses, to sign and deliver to defendant a warranty deed to certain real estate in Lawrence county, Missouri; to this charge he pleads not guilty, thereby raising an issue of fact between him and the State, which you, the jury, must determine from the evidence in the cause, in connection with which the court instructs you as follows:
“If you find and believe from the evidence beyond a reasonable doubt that at the time and in the county of Barry and State of Missouri, and within three years prior to the filing of the information herein, to-wit, March 21, 1910, the defendant did unlawfully, fraudulently, falsely and designedly make to the said David Dimit the false and fraudulent representations and false pretenses set forth in the information, and if you further find and believe from the evidence that by means of such false and fraudulent representations and false pretenses, the defendant did unlwfully and designedly obtain from said David Dimit his signature to the written instrument, to-wit, the warranty deed mentioned and described in the. information, to him, the said defendant, with the intent on the part of him, the said defendant, then and there to cheat and defraud the said David Dimit, as charged in the information, you will find the defendant guilty as charged in the information, and assess his, punishment at imprisonment in the penitentiary for a term of not less than two nor more than five years. And, unless you so find and believe from the evidence in said cause, you will acquit the defendant.”

I. The defendant contends that the information is insufficient in not fully describing the deed which was- obtained from Dimit. It does not state tbe name of the grantee in the deed.

In State v. Barbee, 136 Mo. 440, l. c. 443, Sherwood, J., sa,ys: “Nor is it stated in whose favor such over-drafts were drawn, nor the dates nor the amounts thereof. 'Now all these things would have to have been proved in order to' convict, and so it wa.s necessary that they should have been alleged, because what is not alleged is not allowed to be proved, and because, further, the law, actuated by the same beneficent spirit which presumes innocence until guilt be established, will presume that what the indictment does not charge does not exist.”

In State v. Stowe, 132 Mo. 199, l. c. 204, the court, speaking through Sherwood, J., says: “It must be quite clear that this indictment is lacking in several essentials which go to make up a valid charge of crime. A person accused is entitled by the terms of the Bill of Bights, article 2, section 22, ‘to demand the nature and cause of the accusation’ against him, and unless the indictment gives this information, it does not answer the end the Constitution requires it should accomplish. The charge in the indictment under consideration is vexatiously vague and indefinite in that it does not state (a) in what county the mortgage referred to was recorded, nor indeed (b) that it was recorded anywhere, nor (c) give the names of the mortgagor and mortgagee, nor (d) the date of the mortgage, nor (e) the amount it was given to secure, nor (f) a description of the horses, which secured the mortgage, although Waugh, to whom the horses were alleged to have been exchanged, was a witness'whose name was indorsed in the indictment.”

As we have held in subdivision 4 of this opinion that the ofíense was not complete until the name of the grantee was written in the deed, we think that the failure to state the name of the grantee is fatal.

II. Appellant also contends that the information is insufficient in not alleging that Dimit delivered said deed to defendant, hut we are of the opinion that the language of the information, to-wit, that said defendant “did then and there feloniously, designedly, knowingly and fraudulently with the intent then and there to cheat and defraud the said David Dimit, obtain the signature of said David Dimit to a certain instrument, ’ ’ etc., following the language of the' statute, is a sufficient allegation of delivery.

III. ' It is also insisted that the representations alleged are mere matters of opinion and cannot be made the basis of a criminal charge.

Bishop says: “It being the common understanding that opinions expressed by persons negotiating in trade are not mutually regarded as facts on which the listening party is to base his action, one’s false statement as to what is his opinion is not a statutory false pretense. The pretense must he of a fact, as distinguished from the state of the speaker’s mind, and not of a nature to be known by him. ’ ’ [2 Bishop’s Criminal Law, sec. 429.]

Wharton says: “We may therefore hold generally that mere exaggerated praise is not a false pretense. Thus to say of a horse that he is a ‘first-class animal,’ or ‘a fine trotter,’ or ‘is all right,’ is a puff which is not indictable, but the statute applies where the defendant makes a specific statement as to soundness, and when he falsely pretends to the prosecutor that a certain horse is the famous horse ‘Charley,’ which it is not. And it is a mere puff to say of a mixture that it is ‘good,’ or ‘first-class’; hut it is an indictable false pretense to declare falsely that it is ■ a non-explosive burning fluid.” [2 Wharton’s Criminal Law, sec. 1155.]

We are of the opinion that the allegation as to false pretenses states what is mere matter of opinion and exaggerated praise of the subject-matter which does not constitute an offense.

So far as the information goes, the deal was made between Dimit and Marion while dealing at arm’s length, and while neither had the advantage of the other by reason of the confidential or fiduciary relation.

The allegation as to the second encumbrance on the land is nullified in the information itself by the statement that Dimit accepted the deed to the land subject to both deeds of trust and agreed to pay them.

IV. Appellant insists that the offense, if any, was committed in Pennsylvania, and that the trial court had no jurisdiction on that account.

We agree that if the deed had been executed in complete form, including the name of the grantee, and mailed by Dimit with the intent that the delivery of the deed to Marion should be a delivery to the grantee therein, then the depositing of the letters in the mail by Dimit would have been a delivery to the grantee, and the offense would be one for the cognizance of the courts of Pennsylvania. But such was not the case for two reasons: first, Dimit sent the deed with the undemanding that Manon’s possession was Dimit’s possession, until,- on completion of the deal, the deed was delivered to the persons whose name should be written therein as grantee, i. e., the owner of the Stone county land; second, the deed was not a deed until Marion, by authority from Dimit, filled in the name of the grantee, and that was done in Barry county, and determines the jurisdiction in this case.

Devlin says: “The deed, when filled out and delivered, is a valid deed.” [1 Devlin on Deeds, see. 457.] That doctrine is affirmed by this court in Field v. Stagg, 52 Mo. 534, and Thummel v. Holden, 149 Mo. 677.

V. Instruction numbered 2 is erroneous. At tbe time of the alleged offense tbe prescribed penalty by sections 1927 and 1904 was not more than five years in tbe penitentiary or by fine or imprisonment in tbe county jail.

Section 1927 was amended in 1909, and became section 4565', and, as amended, provides for punishment solely by imprisonment in tbe penitentiary, but clearly, as to a previously committed offense, it is ex post facto and does not apply. [State v. Kyle, 166 Mo. 287, l. c. 304.]

VI. Instruction numbered 2 is erroneous by reason of tbe fact that it does not tell tbe jury what false representations tbe defendant is charged with, but refers tbe jury to tbe information for that purpose. [State v. McCaskey, 104 Mo. 644.]

VII. Tbe court committed no error in admitting tbe deposition of defendant taken on December 13, 1909, in tbe civil suit between Dimit and Marion. It is true that Marion was subpoenaed by Dimit to appear and give bis deposition in that suit. Tbe evidence does not show that be, at tbe time bis deposition was taken, objected to testifying on tbe ground that it would incriminate him. It was more than three months before this prosecution was begun. His deposition was not taken at a coroner’s inquest, or at a preliminary bearing of tbe felony charge. There is no showing that any prosecution was then contemplated, or that defendant was then suspected of a crime. He was not an inexperienced youth, or an ignorant man.

Tbe case of State v. Young, 119 Mo. 495, has become a leading case on this subject. Dantt, J., says (l. c. 518): “Another distinction made by tbe common law courts and followed by tbe courts of this country, is that a statement made under oath will not be rejected on account of its having been under oath, unless that oath was administered in the course of some judicial inquiry in regard to the crime itself, for which the person is on trial. [Wheater’s Case, 2 Moody’s C. C. 45; Rex v. Merceron, 2 Starkie, 366; Josephine v. State, 39 Miss. 613-650.]”

And on page 521, quoting from People v. McMahon, 15 N. Y. 384, he says: “In that case the authorities are collated and from them the following rule is deduced: ‘When a party is examined as a witness before a magistrate or coroner’s inquest and is after-wards prosecuted for the same offense under investigation, his testimony, so taken, will not be received against him, if at the time of his examination, he was charged or suspected of the crime, and that he was informed of the charge or suspicion against him.’ This we believe to be the correct rule; that which is supported by the weight of authority. It will be seen that the fact of arrest or no arrest does not figure in this proposition. Whether the party be under arrest, either by warrant or without warrant, or is not under arrest, if he is charged or suspected of the crime . . . . his testimony taken before the magistrate or coroner’s inquest is not admissible against him.”

And the latter case was approved and followed in State v. Faulkner, 175 Mo. 546 (l. c. 608).

Section 6360, Revised Statutes 1909; does not apply. It is as follows: “Whenever any person shall testify, either as a party or as a witness, in any suit or proceedings now or hereafter pending, the testimony of such person shall not be used as evidence to prove any fact in any suit or prosecution against such person for any penalty for violation of any law in relation to fraudulent conveyance of property.”

We do not find that this section has ever been judicially construed. The words “fraudulent conveyance” have a well-defined meaning in law, and refer always to fraud on the part of the grantor or vendor against the right of his creditors, or of purchasers from him.

There is no reason for presuming that the Legislature intended that section to be broader in its application than its languge indicated.

For the reasons above given the judgment is reversed and the cause remanded.

Bond, G., concurs.

PER CURIAM:

— The foregoing report of the

commissioners is hereby adopted as the opinion of the court.


source: Caselaw Access Project

author: FERRISS, J.

license: Public Domain

text:
    THE STATE v. THOMAS DRISCOLL, Appellant.
    Division Two,
    June 20, 1911.
    1. INSTRUCTION: Manslaughter: Provocation: Murder in Second Degree, An instruction for manslaughter in the fourth degree is proper where the evidence shows that the killing was done under the influence of passion suddenly aroused by an assault. Such s,n assault if committed a sufficient length of time prior to the killing for the passion aroused thereby to cool, will not authorize such an instruction; but if there had been such previous assault, and immediately before the killing deceased leaped upon and grabbed defendant, then such an instruction should be given. And this last condition being present, the couri did not err in refusing to confine the case to murder in the second degree, but properly gave an instruction for fourth degree manslaughter, of which offense defendant was convicted.
    2. -: On Self-Defense: Based on Defendant’s Testimony. Where deceased, a large, vicious, brutal man, without any provocation whatever had assaulted defendant earlier in the evening and knocked him down, and defendant testified that later, as he was drinking beer in a saloon, deceased called him a vile name and said he would “get” him yet; that he was scared; that, passing through the same swinging door leading from the saloon to a store through which deceased had gone, he took a butcher knife from the counter to defend himself in case he should be again assaulted; that when he got to the door leading to the street deceased leaped at him and grabbed h:m, and that he then jabbed deceased with the knife, killing him, there was enough in defendant’s own evidence to authorize an instruction on self-defense, although defendant’s testimony as to certain material features is not in harmony with that for the State.
    3. -: Securing Weapon: Comment on Evidence. The court properly refused an instruction telling the jury that “there was nothing wrong in defendant taking the knife from the counter of the grocery store, provided he took it for the purpose of defending himself in case he was attacked.” The manner in which he secured the knife was an item of testimony' competent for the jury to consider, but the court properly refused to comment in an instruction on this item of evidence.
    Appeal from St. Louis Circuit Court. — Eon. Eugene McQuillin, Judge.
    Affirmed.

      Charles Joy and Arthur N. Sager for appellant.
    (1) Tire offense, if any, committed by defendant was murder in the second degree, or it was a case of justifiable bomicide. There was no element of manslaughter in the case and no evidence justifying the court in submitting an instruction defining manslaughter to the jury. Sec. 4449, B. S. 1909; State v. Diller, 170 Mo. 1; State v. Petit, 119 Mo. 416 ; State v. Goldsby, 215 Mo. 48; Sec. 4467, B. S. 1909; State v.' McKenzie, 177 Mo. 711. (2) The court committed a reversible and prejudicial error in instructing the jury that they might find the defendant guilty of manslaughter in the fourth degree, there being no evidence upon which to predicate such an instruction. State v. Punshon, 124 Mo. 448 ; State v. Hollingsworth, 156 Mo. 178; State v. Kilgore, 71 Mo. App. 546; State v. Douglas, 15 Mo. App. 1.

      Elliott W. Major, Attorney-General, Charles C. Bevelle and John M. Damson, Assistant Attorneys-General for the State.
    (1) There was ample evidence to support the verdict of the jury, and the jury having settled all conflict of evidence, this court will not interfere nor disturb the verdict. State v. Rollins, 186 Mo. 505; State v. Miller, 188 Mo. 379; State v. Smith, 190 Mo. 723. (2) Instruction 11, refused, was properly refused. First, because it singled out and commented upon a part of the evidence; and, second, the substance of- this instruction had been fully covered by instructions 7 and 8, given on behalf of the State. (3) Appellant complains in his motion for new trial to the action of the court in giving to the jury an instruction on manslaughter in the fourth degree. In the giving of this instruction the trial court cannot be convicted of error. The record shows that the State introduced evidence tending to show that the appellant, in the heat of passion, induced by reasonable provocation, without malice and without premeditation, cut and stabbed the deceased. It has been held in this State that “the passion which will reduce homicide to the grade of manslaughter is an excited state of mind, produced by some lawful provocation, such as a blow or an assault of any kind upon the person. ’ ’ State v. Ellis, 74 Mo. 207; State v. McKenzie, 177 Mo. 712; State v. Sumpter, 153 Mo. 436; State v. Meadows, 156 Mo. 110; State v. Brown, 64 Mo. 367; State v. Ashcraft, 170 Mo. 409; State v. Diller, 170 Mo. 1; State v. Kindred, 148- Mo. 270; State v. Gartrell, 171 Mo. 489.
   FERRISS, J.

— Under an information charging him with murder in the second degree for the killing of one John DeWitt, defendant was convicted of manslaughter in the fourth degree, the jury assessing his punishment at two years in the penitentiary. Judgment of sentence was pronounced and entered accordingly, from which judgment defendant appeals.

The evidence tended to prove the following facts:

On the evening of June 26, 1900, defendant, deceased and one or two other men were drinking beer in a livery stable located on North Market street, near Prairie avenue, in the city of St. Louis. Said livery stable was owned by one John Schweitzer, by whom defendant was employed as driver. At the southwest corner of North Market street .and Prairie avenue was a grocery store and saloon, owned by H. J. Boeder, the main entrance being from Prairie avenue, which ran north and south. A partition separated the store and saloon, but swinging doors in the partition allowed of communication between both. The street entrance to the saloon .was from North Market street. After the beer-drinking referred to, deceased separated from his companions and went to Roeder’s saloon. About eight o’clock that evening, defendant and two companions, Roberts and Hurlehey, were at the northwest corner of P’rairie avenue and North Market street. Roberts asked Hurlehey to buy him a drink, and Hurlehey replied, “I will buy you no drink.” Just at that time deceased, preceded by one Maxwell, was crossing the street from said saloon. Hearing Hurlehey’s remark, deceased said, “You won’t buy me a drink?” Hurlehey explained that his remark had reference only to Roberts. Deceased, who was somewhat intoxicated, then turned on the defendant, called him a-vile name, and, without the smallest provocation, struck him on the head. Defendant fell, striking his head on the sidewalk, and lay there several minutes, apparently unconscious. Maxwell said to deceased, “You oughtn’t to do that,” whereupon deceased applied to Maxwell the same epithet that he did to the defendant, and struck twice at Maxwell, who received the blows on his arm. Maxwell did not know his assailant, nor had he ever seen him before. Defendant, having recovered consciousness, got up ■and walked away, saying, “I am going to get a policeman and get you all arrested. ’ ’ After proceeding south on Prairie avenue for a short distance, defendant returned and went into Roeder’s saloon where he washed the blood off his wounds. He then invited one Peisel to the bar, and called and paid for two glasses of beer. Deceased came in while they were drinking same and ordered a glass of beer. He spoke to Feisel and gave defendant an angry look. After drinking the beer, deceased left the saloon, went into the grocery store, spoke to Roeder, the proprietor, and told bim that he was going home. A few minutes after deceased left the saloon, defendant went through the swinging door into the store. Roeder was waiting on customers, and John Schweitzer, owner of the livery stable alluded to, was assisting him. Near the door through which defendant entered the store was a small meat counter from which defendant picked up a large butcher knife, after securing which he walked quickly towards the street entrance where he encountered the deceased and stabbed him with said knife. Deceased was heard to say, “He has got me; let me get him.” Defendant, being either pushed or struck by deceased, fell back into a tub of chickens, and the knife was wrenched from him by Schweitzer. Thomas Ogle, a witness for the State, saw defendant come through the swinging door, and run towards the deceased, and then saw defendant “make an effort to punch DeWitt in the jaw, like with his fist,” but the witness did not see a knife in defendant’s hand. The evidence for the State • further tended to show that defendant stabbed the deceased without warning or any immediate provocation, and that at the time deceased was stabbed he was talking to Schweitzer’s mother near the door, she having just come in to purchase groceries. Deceased died nest day from the wound inflicted by the knife. The wound was in the right side, between the tenth and eleventh ribs, and was about six inches deep, piercing the liver, death being caused by hemorrhage of the liver.

Defendant testified that at the time he and Feisel were drinking at the saloon bar, deceased came in, called for a glass of beer, and said to defendant, “You son-of:a-bitch, I will get you yet.” Feisel testified that he heard deceased say something to defendant, but that he did not understand what he said. It appeared that Feisel could not hear well. Defendant further testified that he was scared, and took the butcher knife for the purpose of defending himself in case he should be attacked by deceased, who had previously.uttered a threat against him; that when he got to the door leading to the street deceased leaped at him, and that he then jabbed deceased with the knife, but that the weight of the deceased caused the knife to enter his side; that one of his (defendant’s) eyes was injured and closed, and that he did not see deceased until the latter leaped on him; that after the struggle with deceased he went back through the partition door into the saloon, and was in the act of leaving the saloon through the North Market street entrance thereto when he again encountered the deceased, who knocked him into the street, where he lay senseless for some time.

One J. I. Higgins testified for the defendant that some time after the stabbing occurrence he found defendant in an alley near the saloon; that defendant appeared dazed and was unable to speak; that he took the defendant to the latter’s home, and left him in charge of his sisters, who washed his wounds and put him to bed.

Defendant was arrested the same night and taken to the holdover, and his injuries were attended to by a physician there from the night of June 26th until July 9 th.

The evidence shows that deceased, a little while before he first attacked the defendant, assaulted another man named Gray, for no other reason seemingly than that Gray was a “Hoosier.” He had been prosecuted and fined for disturbing the peace, and defendant testified that about two years previously he was beaten by deceased, from which beating he was “laid up for about a week.” It wnuld appear from the evidence that deceased, who was a large, powerful man, was vicious, brutal and quarrelsome. Defendant was a small man, and his reputation for peace' and orderly conduct was good.

I. The defendant complains that the evidence did not justify an instruction on manslaughter in the fourth degree, and also that two instructions, offered by defendant and refused, should have been given.

The evidence for the State makes a strong case of murder in the second degree, and we think the defendant was fortunate in escaping conviction for that offense. An instruction for manslaughter in the fourth degree is proper where the evidence shows that the killing is done under the influence of passion suddenly aroused by an assault. It may properly be said that the assault which was committed by the deceased upon the defendant earlier in the evening would not in itself justify an instruction for manslaughter in the fourth degree because there was sufficient time for the passion aroused by that assault to cool.

The defendant testified as follows:

“Q. When you got to the door what happened? A. DeWitt made a leap at me. I had that knife in my hand — I don’t know which hand; and as he did, I plunged the knife through him.” Further, he says, “When I got up to him, DeWitt leaped for me, and he got it plunged in his body — against the knife was how he got stabbed.” A further question: “You were how far'from him when you first saw him? A. Right on top of Mm, and lie grabbed me. Q. And when lie grabbed you, you stuck it into Mm? A. Yes, Ms weight stuck the knife into him. Q. Don’t you mean to say you held it like that (illustrating), and he ran into it? A. No, I made a jab at him.”

Defendant claims that, in view of the prior assault upon him, and the threat made a few minutes before in the bar-room by the deceased, he, the defendant, was justified in apprehending that when the deceased leaped for him at the door he intended to do him great bodily harm, and that he was therefore justified in stabbing him in' self-defense. This question was submitted to the jury by an instruction on self-defense extremely favorable to the defendant.

The evidence shows that an assault was made upon the defendant by the deceased, that when defendant encountered the deceased at the door deceased leaped upon and grabbed Mm, and that defendant immediately used the knife. The mere fact that the deceased leaped upon and grabbed defendant — in other words, assaulted him — was a sufficient foundation, we think, for the instruction for manslaughter in the fourth degree, as such conduct on the part of the deceased was calculated to arouse sudden passion in the breast of defendant and deprive him of the capacity to think coolly of the natural consequences of his act. The evidence for the State tends to show that the defendant, brooding over the wrong which he had suffered at the hands of the deceased earlier in the evening, and suffering from the effects of that assault, seized the knife which was lying on the meat counter in the store, rushed towards the deceased, who was standing in the doorway talking peaceably with Mrs. Schweitzer, and stabbed him without any warning. The self-defense theory is based alone upon the testimony of the defendant. We think, under the facts in this case, that the defendant was fortunate in securing a conviction for manslaughter in the fourth degree. We are satisfied that there is enough in his own evidence to justify the giving of that instruction.

II. The instructions offered by the defendant were properly refused. One of these instructions was as follows:

“You are instructed that there was nothing wrong in defendant taking the knife from the counter in Roeder’s grocery store, providing he took it for the purpose of defending himself in case he was attacked.”

The question in this case is not whether the. defendant did wrong in securing possession of the knife, but whether he committed an offense, and if so what offense, in using it as he, did upon the deceased. The manner in which he secured the knife was an item of testimony competent for the jury to consider, but the court properly refused to comment on this item of evidence in an instruction.

The substance of the other instruction asked by the defendant is fully covered by the instructions given for the State, and needs no further comment.

In no other respects than those mentioned above does the defendant complain of the trial.

The judgment is affirmed.

Kennish, P. J., and Broiun, J., concur.


author: BOlND, C. PER- CURIAM:

text:
    JAMES R. WALTON, Appellant, v. CHRISTIAN COUNTY.
    Division Two,
    June 20, 1911.
    1. INSANE CRIMINALS: Transferred to Hospital: Liability of. County. Wliere an insane criminal, living and residing in a certain county, has been convicted of a crime in that county, and sentenced and committed to the penitentiary, and, by warrant of the Governor, transferred as an insane person to a state hospital for the insane, the county is liable to such institution for his keep there.

      2. -: -: Error in Governnor’s Warrant: Evidence of Residence. And the fact that the Governor’s warrant transferring the insane criminal from the penitentiary to a state hospital, named the wrong county as the place of his conviction, does not lessen the liability of the county in which he was convicted and where he actually resided, for his keep in the hospital, nor is it evidence of his residence. That part of the Governor’s warrant is simply narrative. The law does not require his. warrant to state the county in which an insane criminal resided at the time of his conviction. The liability of the county is imposed by the statute, and is conditioned upon the residence and insolvency of the criminal at the time of his conviction and his subsequent insanity while in the penitentiary.
    Appeal from Christian Circuit Court. — Hon. John T. Moore, Judge.
    Reversed and remanded.

      J. H. Journey and Farrar & Hartley for appellant.
    Where a man is convicted of a crime and sentenced to the penitentiary for a term of years, and afterwards becomes insane and is transferred upon a warrant properly issued by the Governor to one of tbe asylums of this- State, all that is necessary to make the county from which he is sent liable for his keep at the asylum is “that he was a citizen of that county at the time of his -conviction and sentence, has since become insane, and is insolvent.” State ex rel v. County Court, 80 Mo. 80; Shields v. Johnson County, 144 Mo. 76; Thomas v. Macon County, 175 Mo. 68.

      F. W. Barrett and J. J. Gideon for respondent.
    1. The order of the Governor reciting that Hartman was a resident of Wright county instead of Christian county,in transferring Hartman to the asylum, is conclusive, and the asylum authorities can not go behind the order of the Governor. There is no appeal from the conclusion which the Governor reaches, and his warrant to the warden of penitentiary is conclusive with respect to such action. Shields v. Johnson County, 144 Mo. 76. 2. Sec. 4873, R. S. 1899, 'where it says that the superintendent “shall,” under the direction of the managers, cause, once in every six months to he made out and forwarded, to any county court which may send to the asylum any insane poor person, an exact account of any sum due and owing by such court on account of such insane person, is mandatory. Whenever third persons or the public have an interest in having that done which is prescribed by the Legislature then the act is mandatory. Lapsley v. Merchants’ Bank, 105 Mo. App. 98. The statute authorizing the incurring of a liability must be strictly followed or the county will not be bound. 4 Am. & Eng. Eney. Law, 359; Dale County v. Gunter, 46 Ala. 118; Clear Lake Co. v. Lake Co., 45 Cal. 90; County v. Smith, 47 Ala. 407; Fergus Falls v County, 88 Minn. 346; 11 Cye. 587, note. Sec. 2666', R. S. 1899:, is in contraven-' tion of the Constitution of the State. Art. 2, secs. 29 and 30. A cause of action accrues' under this section every six months, when the account is presented to the county court and refused; and if appellant had so presented its account respondent would not be liable for only what has accrued within the last five years. R. S. 1899, sec. 4273.
   STATEMENT.

BOlND, C.

— Plaintiff is the treasurer of 'State-Hospital No. 3, and, as such, sued the defendant county for the keep of an insane criminal who had been transferred to said hospital upon the warrant of the Governor. The account filed runs from the first day of June, 1900, at intervals of six months, until the first day of June, 1906, and aggregates $902.85. The petition prayed judgment for said sum and interest, and' an allowance of the attorney’s fees to be taxed as-costs.

The answer of the defendant admitted the conviction of the person, Wesley Hartman, of the crime of arson, in the circuit court of the defendant, Christian County, in 1899. It denied his insanity; and denied the suspension of his sentence by the Governor; denied his transfer to the asylum, and denied that he was a resident of defendant county when convicted there; and averred that the county had no notice that the said 'Wesley Hartman had been transferred to the asylum, and that no demand had ever been made upon it for his keep while there.

There was evidence tending to show that the said Wesley Hartman was a resident of defendant county •at the time of his conviction there of the crime of arson in 1899, and was sent- from that county to the State Penitentiary; that, thereafter, to-wit, December 26, 1899, the Governor of the State suspended his sentence because he had become insane in' the penitentiary, and directed him to be taken to State Asylum No. 2, at Nevada, Vernon county, Missouri. The evidence further showed that this order or warrant of the Governor erroneously recited that said Hartman had been convicted in Wright county, Missouri. The evidence showed that an account and demand for his keep had been made upon Wright county, payment refused and suit had been instituted; and that, upon the discovery that said Wesley Hartman had never resided in said county, nor had been tried and convicted there, but that he had been a resident of Christian county and was tried and convicted there, the suit against Wright county was dismissed, and the present action was begun. There was evidence showing that during his residence in State Hospital No. 3, he fell heir to a small estate of about $121, coming from Virginia; that inquisition of lunacy was begun in the defendant, Christian county, which resulted in his being adjudged non compos. .A guardian of his estate was appointed, whose settlement showed a balance of $27.63, and that this was all the estate possessed by said Wesley Hartman, and that he was indebted beyond that.

The ease was submitted to the court without a jury. No instructions were asked or given, and judgment was rendered for defendant county, from which plaintiff appealed.

OPINION.

I. The judgment was for the wrong party. The evidence tended to.prove all the allegations alleged in the petition of plaintiff, and a judgment should have been rendered in his favor for the amount of the account not barred by the Statute of Limitation. .

The liability of the counties of the State for insane criminals, living and residing in said counties, who were insolvent when convicted and whose sentences have been suspended, as in this case, by the warrant of the Governor, in order that they may be transferred to the State institutions for the insane, is well' settléd. [Thomas v. Macon County, 175 Mo. 68; Shields v. Johnson County, 144 Mo. 76; Yarnell v. Cole County, 80 Mo. 80; R. S. 1899, secs. 2666, 4863, 4873, 4889 and 4891.]

Defendant contends that the misrecital of the place of the conviction of Wesley Hartman, contained in the Governor’s warrant for his transfer from the penitentiary to the State asylum, was conclusive evidence of his residence in Wright county. There is no merit whatever in this, contention. That part of the Governor’s warrant was simply narrative. The law does not require his warrant to state the county in which an insane criminal resided at the time of his conviction. The liability of the counties of the State imposed by statute in cases like the present is conditioned upon the residence and insolvency of the criminal at the time of his conviction and his subsequent insanity while in the penitentiary. These necessary elements were all shown by undisputed testimony, and entitled the plaintiff to recover.

For the error of the trial court in rendering judgment for defendant, said judgment is reversed, and this cause is remanded for a new trial.

Boy, G., concurs.

PER- CURIAM:

— The foregoing report of the commissioners is hereby adopted as the opinion of the court.


author: BROWN, J.—

text:
    JAMES E. GUY et al., Appellants, v. GORDON MAYES et al.
    Division Two,
    June 20, 1911.
    1. WILL: Life Estate: To Trustees. One clause of the will said, “I give and bequeath to my son John W. Guy, to be placed in the hands of trustees,” named, one hundred acres of land. A subsequent clause read: “I desire that all the rest of my estate, both real and personal, be sold and equally divided between my wife and children,” one of whom was John; and, “I desire that whatever may be coming to my son, John W. Guy, shall be placed in the hands of his trustees for his benefit and support.” Held, that the will did not vest a life estate in John in the “rest” or remainder of the estate, but was a devise of the residue to the widow and all the children of the same character of title.
    2. -: Devise to Trustee: Purchase by Trustee: How Attacked. A purchase from the beneficiary by the trustee of land devised to the beneficiary to be “placed in the hands of his trustees for his benefit and support” is not void, but only voidable at the instance of the injured party or someone standing in his shoes, by a direct attack. It is very doubtful whether in an ordinary action at law for the partition of real estate such a deed can be assailed.
    3. --: -: -: Spendthrift: No Showing of Inequity. Where the devisee, whose devise by the will was “placed in the hands of his trustees for his benefit and support,” was a spendthrift and required the care of both physicians and nurses because'of his excessive use of intoxicating liquors, and after he had taken the “whiskey cure” there seemed to be a fair prospect that by giving him something to do he might be changed into a useful citizen, and thereupon the trustees bought his interest in the land at a price admitted to be all it was worth, and used a part of the money to set him up in a suitable business, and tbe balance for his support till he died, and no denial of any of these things is made or shown, it would be inequitable to set the deed aside, even if it were directly attached by a bill in equity. 1
    4. PARTITION: Awarding Claim Not Demanded. In a partition suit the court cannot award to defendants a claim against the estate which they do not by their answer directly or indirectly claim, even though the proof shows it to be just and due. So that where the will devised to the widow and four children 590 acres of land to be equally divided among them “after giv-' ing” to one of them $900, and the defendants, -who are the heirs of that one, file only a general denial to plaintiffs’ petition in partition, they cannot be allowed the $900.
    Appeal from Pike Circuit Court. — Mon. David M. Eby, Judge.
    Affirmed (as modified).

      Pearson & Pearson for appellants.
    Under the will in this case it was clearly the intention of the testator, Jno. R. Guy, to convey his property to trustees, ¥m. Mac. Guy and S. F. Mayes, to be held by them for the use and benefit of his son, John W. Guy, during his life time; the remainder upon his death to go back to his estate and be divided equally among John R. Guy’s heirs. He was only willed an equitable life estate. Munroe v. Collins, 95 Mo. 33. Simmons v. Oabanne, 177 Mo. 336; Cross v. Hotch, 149 Mo. 329’; Small v. Field, 102 Mo. 105; Louis v. Pittman, 101 Mo. 292; Partridge v. Cavendar, ’96 Mo. 452; Reinders v. Koppelman, 94 Mo. 343. In placing it in the hands of trustees the legal title was placed beyond the right and power of John W. Guy to convey by deed. The deed made by him to S. F. Mayes conveyed nothing1. At his death his undivided one-fifth interest in the property described in the petition went to the heirs of John R. Guy; and the trial court should have so held, and ordered his interest distributed accordingly. (2) Tbe nine hundred dollar legacy in the seventh clause of John R. G-uy’s will, was not an issue in this cause; was not set up or. claimed as an incumbrance against .the property by the defendants in their answers, and was not contended for in the agreed statement of facts. The court committed error in attempting to find that it had not been paid, and making it a charge against the property sought to be partitioned.

      Frank J. Duvall and J. D, Hostetler for respondents.
    • The authorities cited by appellants’ counsel have no applicability to the case at bar. There is nothing in either clause 7 or 8 of the will of John R. Guy, either when read separately or together, which evinces an intention on the part of the testator to devise to John W. Guy a life estate only. The mere fact that the testator provided as he did in the eighth clause of his will, that “whatever may be coming to my son John W. Guy, shall be placed in the hands of his trustee for his benefit and support,” does not create a life estate in John W. Guy either of the thing devised, or of its proceeds, when sold. Jones v. Jones, 123 S. W. 29. John W. Guy under the seventh clause of his father’s will took the same quantity of estate and interest in the “rest of my estate, both real and personal,” as the testator puts it, as any one of the testator’s other children. (2) In regard to the $900 which the testator required should be paid to Susanna Mayes, that was simply a question of fact. The agreed statement of facts nowhere conceded that said sum had been paid to her by her father. The court, after hearing evidence on that issue, after the case had been reopened, by agreement of all parties for that purpose, decided that said sum had never been paid to the testator’s daughter, by him, nor had it ever been paid to her heirs at law out of the personal estate of said testator by his executors during the process of its administration. So that this sum was merely a charge on the land involved in this suit in favor of the heirs of this daughter to the extent of the unpaid $900 before the other devisees could participate in the division of the proceeds. It is the duty of the court in partition proceedings to adjust all the equities between the parties, and settle all adverse ■claims. And if from the evidence it should appear that there is an outstanding claim or an incumbrance, it is the duty of the court to refuse partition until all parties in interest are brought into court and all liens and incumbrances provided for in the decreed
   BROWN, J.—

Action for partition of real estate. This appeal is taken from a decree awarding to defendants a larger interest in the property than plaintiffs’ petition concedes them to have.

The issues tendered, or attempted to be tendered, in this case, turn upon the construction of the will •of one John E. Guy, which is as follows:

“First. I desire all my.just debts fully paid.
“Second. I give and bequeath to my beloved wife, Elizabeth S. Guy, the home place where we now live near Paynesville, Mo., containing one acre of land with all and singular thereto pertaining which I value at two thousand dollars, charged in my book.
“Third. I give my son, Wm. Mac, Guy, one hundred acres of land, as per deed given to him, valued at $2000', charged in my book.
“Fourth. I give my son, James E. Guy, one hundred acres- of land as per deed given to him, which I value at $2000', charged in my book.
“Fifth. I give and bequeath to my son, John W. Guy, to be placed in the hands of trustees, viz.: Wm. Me. Guy and Stephen Mayes, one hundred acres of land, just south of Guinn’s creek, and west of Nimrod Guy’s land, and east of James E. Guy’s land and to run south far enough to make one hundred acres of land, which I value at $2000'. And I desire that he shall have a piece of land south of the above described land, say 30 or 401 acres, at what it may be worth, •at the distribution of my estate, all placed.in the hands of his trustees. If he and his child or children should die before the children arrive of age, then his part to go back to my estate.
“Sixth. I have given my daughter, Susanna. Mayes, this amount, $1100, for which I have charged her.
“Seventh. I desire that all the rest of my estate-both real and personal shall be sold and equally divided between my wife and children, after giving Susanna Mayes $900', if I shall not pay her that sum before-I die.
“Eighth. I desire that whatever may be coming” to my son, John W. Guy, shall be paced in' the hands of his trustees, for his- benefit and support.
“Ninth. I hereby appoint my two sons, viz : Wm. Me. Guy and James E. Guy and my son-in-law, StephenMayes, executors of this, my last will and testament. ’ ’'

James R. Guy, the testator, died in 1892; his widow, Elizabeth Guy, died in 1901; and John W. Guy, one of his three sons, died intestate and without issue-about the year 1903. The daughter, Susanna Guy Mayes, also died intestate, leaving seven children, to-wit: Gordon Mayes, Arch Mayes, G. TI. Mayes, Birdie-M. Pry (intermarried with Joseph C. Pry), Estelle Cox (intermarried with Bert Cox), Clifton Mills (intermarried with Clarence Mills), and Sue Guy Mayes,, a minor.

These children of Susanna Mayes, with A. J.. Porgey, trustee of Mrs. Pry, and Stephen Mayes, cm rator of Sue Guy Mayes, are the defendants in this action; while James E. Guy and William Mack Guy, the two surviving sons of the testator, are the plaintiffs.

This action mainly involves the construction of the seventh, or residuary clause of the aforesaid will, whereby the testator, John R. Guy, devised about 590 acres of land in Pike and Lincoln counties to his widow, daughter, and three sons in equal shares. The property devised by the other clauses of this will is not in dispute in this action.

John W. Guy, deceased (one of the testator’s sons), was a drunkard and spendthrift; and for this reason, testator made William Mack Guy, his brother, and Stephen Mayes, his brother-in-law, trustees of the property devised to him, as recited in the will. William Mack Guy refused to act as trustee for his spendthrift brother; and while his brother-in-law, Stephen Mayes, did not give bond as trustee, he seems-to have supervised the property of John W. Guy, and also to have looked after his many personal needs,, until his death. John W. Guy, the spendthrift, was sent to Dwight, where he took the “whiskey cure;”' and after that, remained sober for three years, and as he desired to go into business, his trustee, Mayes, in order to furnish him money to go into the butcher-business, purchased' his interest in the 590 acres in controversy, at the price of $1250. The trustee, Mayes, used $700 of the purchase money in setting up said John W. Guy in the butcher business; and the remainder of said purchase money in the care and support of said spendthrift during the remainder of his life. The interest in the said 500 acres which was thus purchased of John W. Guy, was conveyed by Stephen Mayes- to Elizabeth Guy, the mother of the plaintiffs; and by her devised to Birdie M. Pry, her grand-daughter (one of the defendants in this cause.)

Plaintiffs contend that the conveyance from John W. Guy to Stephen Mayes, his trustee, is absolutely void, by reason of the fiduciary relations of said trustee to said John W. Guy at the- time said deed was made. Plaintiffs also insist that the will of their ancestor only vested in John "W. Guy a life estate in the 500 acres in controversy; and that upon the death of said spendthrift, his interest in the land in controversy descended to the plaintiffs, his brothers, and to his nephews and nieces, defendants herein.

In their petition, plaintiffs do not attack the validity of the deed from John W. Guy to Stephen Mayes; in fact, said petition contains no specific mention of that deed o,r of the interest once held by John W. Guy. However, in a general allegation, plaintiffs claim that they and the children of their deceased sister, Susanna Mayes, own all the title of which John R. Guy, the testator, died seized.

Prior to this suit, all the heirs of Susanna Guy Mayes had conveyed to plaintiff, James E. Guy, all the interest which they acquired to the property in ■controversy, as< the heirs of their mother; and by their -answer, none of said defendants except 'Birdie M. Pry claim any interest in the real estate in controversy. Mrs. Fry claims the interest which passed by the will of testator, John R. Guy, to her grandmother, Elizabeth Guy, and to her uncle, John W. Guy; and the trial court adjudged her to be the owner of said last-named interests-.

The trial court also adjudged that the defendants, as heirs of Susanna Mayes, were entitled to a lien on the real estate in controversy for the $900 mentioned in the aforesaid seventh clause of the will of John R. Guy, although said defendants do not in their answer set up any claim to said $900'. In fact, the answer of all the defendants except Birdie M. Fry, is a general denial.

The plaintiffs assign error in the action of the trial court in awarding defendants a lien for the $900, claiming that the evidence- shows that this $900 was paid to Mrs. Mayes, their mother, by her father during his.lifetime; and also asserting that the court could not award such a lien to the defendants when they did not ask for it in their answer.

Plaintiffs also claim that the court erred in awarding to defendant, Birdie M. Pry, the interest devised to her spendthrift uncle, John W. Guy, and which the court found passed through the-deed of said spendthrift to his trustee, Stephen Mayes.

Such additional points in the evidence and pleadings as will be necessary to a full understanding of the case will be noted in our opinion.

OPINION.

We cannot agree with the plaintiffs’ contention that the will of John E. Guy only vested a life estate in his spendthrift son, John W. Guy, in the 590 acres which passed by the seventh clause of said will. The plain, unequivocal import of said seventh clause of the will is that the testator devised the remainder of his estate to his wife and his four children in equal shares, and vested the same character of title in each of them.

We have examined the cases of Munro v. Collins, 95 Mo. 33; Simmons v. Cabanne, 177 Mo. 336, and other cases cited by plaintiffs; but they do not sustain the contention that the seventh clause of said will passed only a life estate to John W. Guy. Such a construction as plaintiffs contend for, might, under certain contingencies, be placed upon the fifth clause of testator’s will; but the land devised by the fifth clause of said will is not in controversy in this action.

The fact that the seventh clause of John E. Guy’swill directs that the land therein devised shall be sold, supplemented by the eighth clause, which says, “I desire that whatever may be coming to my son, John W. Guy, shall be placed in the hands of his trustees for his benefit and support,” makes it too clear to admit of doubt that said testator intended that the proceeds of the land devised to said spendthrift by the seventh clause should be used for his benefit and support in such reasonable and rational manner as his trustees might direct.

The contention of plaintiffs that the purchase of the interest of John W. Guy, the spendthrift, in the 590 acres in controversy, by his trustee, Stephen Mayes., is illegal, and that the deed made in pursuance of such purchase, is void, is entitled to more serious consideration.

The law looks with great disfavor upon purchases by trustees of the trust property in their charge; and upon a direct attack, will set aside such transactions ■upon slight proof of fraud, deception, unfairness or •over-reaching. However, the purchase by, a trustee of trust property is not void, but only voidable at the instance of the injured party or someone standing in his shoes. [Richards v. Pitts, 124 Mo. 602; State ex rel. v. Jones, 131 Mo. 194; Burford v. Aldridge; 165 Mo. 419.]

In the case before us, Stephen Mayes testifies that he paid every dollar the interest of John "W. Guy was worth; that he faithfully applied every dollar of the purchase money for the benefit and support of said spendthrift.

It seems that this, spendthrift was an unusually difficult person to care for; that as a result of the excessive use of intoxicating liquor, he was frequently in the hospital, requiring the care of both physician and nurse; that after he had taken the “whiskey cure” there seemed to be a fair prospect that by giving him something to do he might be changed from a shiftless vagabond into a useful citizen. Whereupon Mayes, after consulting one of the plaintiffs and receiving his verbal approval, bought John W. Guy’s interest in the residuary estate, in order to furnish him funds to go into business. Mayes testifies that ;neither the- plaintiff, William Mack Guy, who' was named as one of the trustees in the will, nor Jacmes E. ■G-uy, the other plaintiff, would do anything for their spendthrift brother, and that he (Mayes) spent twice as much as the value of the land conveyed to him, in caring for and trying to reform his erring brother-in-law. The plaintiffs have not introduced one word of evidence to rebut the testimony of Mayes on these points, and do not challenge the accuracy of his statements in any manner. In view of these facts, the demand by the plaintiffs that John W. Guy’s deed to Mayes be declared void and that the interest which he conveyed to Mayes be awarded to them, is in a high degree inequitable.

If, instead of purchasing John W. Guy’s interest in the property in controversy, Mayes had caused the whole property to be sold as directed by the will, then there is no doubt' that Mayes could have used John W. Guy’s share of the proceeds in'exactly the same manner as he used the'$1250’ which he-paid for the spendthrift’s interest; consequently, there is no evidence upon which to declare the deed from John W. Guy to Mayes invalid.

The petition of plaintiffs is an ordinary action at law for the partition of' real estate; and it is very doubtful if in such an action the invalidity of a deed which as we have seen, is not void, but only voidable, can be assailed. [State ex rel. v. Jones, 131 Mo. 194, l. c. 205.]

Treating the plaintiffs petition as an action at law, they cannot recover the interest devised to John W. Guy, because they have not asked for the cancellation of the deed which he made to Stephen Mayes. On the other hand, if we indulge in the presumption that the plaintiffs are suing in equity to annul said deed, then they must fail, because they have not proven any facts entitling them to such equitable relief. So we must affirm the action of the trial court in giving full effect to the deed from John W. Guy to his trustee, Stephen Mayes..

Plaintiffs’ third contention that the trial court erred in awarding to such of the defendants as are heirs of Susanna Mayes, a lien upon the land in controversy for the $900 bequeathed to said Susanna Mayes, their mother, must be sustained. There was substantial evidence that the testator never paid his daughter that $900' bequest; and if the heirs' of Susanna Mayes had not been before the trial court, this would, perhaps-, have furnished ground for denying partition, because all the parties interested - in the property had not been brought in; but in this case, all the heirs of. Susanna Mayes were before the court; but none of them have by their answer set up any claim to a lien because of the above mentioned bequest. In fact, all of them except Mrs. Birdie M. Fry have simply filed a general denial.

We are not aware of any rule of law in this State whereby in a partition suit the court may award to defendants a lien upon or an interest in the land which they do not by their pleading’s directly or indirectly claim. In fact, there is respectable authority that this cannot be done. In the case of Lee v. Lee, 161 Mo. 52, l. c. 58, we ruled that in a partition suit, a homestead interest in lauds could not be assigned to a widow who in her answer had neglected to set up such-homestead right.

It follows that the circuit court should be directed to modify its judgment by eliminating therefrom the lien, of $900 in favor of the heirs of Susanna Mayes; and that such judgment, as modified, should be affirmed. It is so ordered.

All concur.