text:
    YORK, Appellant, v. STIGALL.
    Division One,
    May 29, 1907.
    1. MOTION FOR NEW TRIAL: Untimely Filing: False Record. The trial court has power, at a subsequent term, to correct a false recital in the record which states that a motion for new trial was filed on the day the verdict was rendered and during the same term, and continued, when in fact no such motion was filed until the next term, and to then strike such motion from the files.
    2. -: -: -: Verity. A court record imparts absolute verity and is not, therefore, subject to collateral attack. And generally the court’s power to amend or correct its record is limited to the term at which the proceedings to be affected were had (except by nunc pro tunc entries based on official data), but that relates to a record entry of a matter disposed of at that term; if it recites that the motion for a new trial was presented and carried over to the next term by an order of continuance, the reason for limiting the exercise of the court's power to correct its record to the term, has no application, and at the next term on a showing that no such motion was filed and no such order made, the motion may he stricken from the files, and the Supreme Court on appeal will not be bound by the false record entry.
    Appeal from DeKalb Circuit Court. — Eon. A. D. Burnes, Judge.
    Affirmed.

      L. F. Eenry, John A. Cross and K. B. Randolph for appellant.
    It is well settled in this State that matters outside of the record, and even the bill of exceptions, cannot be used to contradict the record. The record in this case shows that on the same day that the verdict was returned by the jury, the plaintiff filed motion for a new trial, and also that the plaintiff filed motion in arrest of judgment. Young v. Downey, 150 Mo. 317. After the motion for a new trial was overruled, the sustaining of the motion to strike it out could have no effect so far as the rights of this appellant are concerned. There is no recital which can be made in the bill of exceptions, or anywhere else, which will take the place of the record, or which will be heard to contradict the record. The filing of the motion for a new trial must appear from the record, and cannot be proven by the recitals of the bill of exceptions. Cummings v. Eiler, 121 Mo. App. 576; St. Charles ex rel. v. Deemar, 174 Mo. 122; Williams v. Harris, 110 Mo. App. 538; Kampf v. Railroad, 102 Mo. App. 314; Hill v. Combs, 92 Mo. App. 2/,7; G-ilmore v. Hart, 92 Mo. App. 388; Hughes v. Henderson, 95 Mo. App: 312.

      W. E. Eaynes and W. M. Fitch for respondent.
   VALLIANT, P. J.

Plaintiff sues for damages for an alleged libel. The cause was tried at the October term, 1903, of the DeKalb Circuit Court. There was a verdict for the defendant and judgment accordingly, the plaintiff appealed.

At the threshold of the case the defendant raises the point that there was no motion for a new trial filed within the time allowed by law, and therefore the action of the court in overruling the motion is not here for review.

The verdict was rendered and the judgment entered October 21, 1903, and in the plaintiff’s abstract of the record is the statement that the record of the court shows that during that term and on the same day in which the verdict was rendered the plaintiff filed a motion for a new trial and also a motion in arrest of judgment; and that thereupon the cause was continued. At the next term, February, 1904, the defendant filed a motion to strike the motion for a new trial from the files for the reason that it was not filed within the four days allowed by law, or even within the term within which the verdict was rendered, and not until the first day of the February term. Thereupon an order was made and entered on the record of the court continuing the motion for a new trial and the motion to strike it out until the next term. At the next term, May, 1904, those motions came on to be considered by the court, whereupon the court overruled the motion for a new trial for the reason, as stated in the order of the court, that it was not filed in time, and sustained the motion to' strike out the motion for a new trial for the same reason. The only motion for a new trial contained among the files was one bearing the filing indorsement of the clerk in these words: “Filed Feb. 1, 1904, 8:30 A. M. A. J. McCoy, Clerk Circuit Court.”

In the bill of exceptions it is said that at the February term the motion to strike out came on to be heard and evidence was adduced to show that the motion for a new trial was not filed until February 1, 1904, and after hearing .the evidence the court took the motion under advisement and continued the cause to the May term with the result as above stated. In the hill of exceptions it -is also said that the motion for a new trial and the motion in arrest of judgment were not filed on the day on which the record of the court says they were filed.

Appellant contends that the record entry saying that the motions were filed on October 21, 1903, is conclusive and cannot be contradicted by any statement in the bill of exceptions or by evidence outside the record. Since appellant states in his own bill of exceptions that the motion for a new trial was not filed at the date the entry on the court record says it'was filed, he is forced to take the position that admitting the entry to be false it is nevertheless to be taken as true and indisputable.

A court record imports absolute verity; therefore, its truth is not subject to collateral attack. But because it is held to be true it is most important that the' power that makes it should be sure that it is true. That power is the court itself. As a general rule the court has control of and is responsible for its own records to see that they record the truth, to amend them when they are defective and correct them when they are wrong. But whilst there is no limitation on the power there is a limitation on the time or the period in which the power of the court to amend or correct its record can be exercised. Such limitation is necessary for the integrity of. the record, because, if a record is open always for any amendment or correction the court having charge of it should see fit at any future time to make, no reliance on its stability could be placed. The general rule therefore is that the court’s power to reform, amend or correct its record is limited to the term in which the proceeding to be affected is had: but when the term ends the power can be exercised only within prescribed lines. If during tbe term a judgment is rendered which is not entered on the record, or is incorrectly entered, the court has no power at a subsequent term to cause the judgment to be entered, or corrected, unless there is some official datum made or existing at the time the judgment should have been entered by which a nunc fro tunc judgment can be safely framed. [Gibson v. Chouteau’s Heirs, 45 Mo. 171; Saxton v. Smith, 50 Mo. 490; Priest v. McMaster, 52 Mo. 60; Robertson v. Neal, 60 Mo. 579; Belkin v. Rhodes, 76 Mo. 643.] But when we say that the court’s absolute power to reform, amend or correct its record is limited in its exercise to the term in which the proceedings to be affected were had, we must be understood as referring to the record entry of a matter disposed of at that term. For example, if the record in this case had shown that at the October term the plaintiff’s motion for a new trial was considered by the court and overruled, the court could not at the next term, on a suggestion that no such order had been made, correct the alleged error unless there was something in the record of sufficient official authority to justify a nunc fro tunc entry. But if the record shows that the matter was not disposed of, if it shows that it was merely presented to the court and then carried over to the next term by an order of continuance, the reason for limiting the exercise of the court’s power in correcting its record to the term, has no application; in such case the motion and everything that affects it, everything that is necessary for the court to know or understand in order to pass judgment, is carried over and is as fully within the scope of the court’s authority, as it was at the initial term.

There is good reason for the rule that the record of a judgment, or of an order disposing of a matter in a cause, duly entered as the act of the court at that term, should not be open for dispute at a subsequent term, but there is no reason why a mere entry purporting to record the fact that a motion was filed which was not then considered but was continued to the next term should come under the same rule. It would be an unreasonable restriction on the jurisdiction of the court to hold that it was powerless to correct a false entry of this kind when the motion to which it referred was still undisposed of and the false statement related a fact material to a correct decision on the motion.

We hold that the trial court had authority to set aside the false entry and to strike from the files the motion for a new trial in this case, and there was no error in doing so.

With the motion for a new trial out of the record there is no bill of exceptions to be considered and since there is no assignment of error as on the face of the record proper we find no error in the case.

The judgment is affirmed.

Graves and Woodson, JJ., concur; Lamm, J., dubitante.


source: Caselaw Access Project

author: LAMM, J.

license: Public Domain

text:
    SARAH A. HUDSON v. WRIGHT et al., Appellants.
    Division One,
    May 29, 1907.
    1. QUIETING TITLE: Reinvesting Title: Remedy at Law. Section 647, Revised Statutes 1899, was repealed by necessary implication by section 650, Revised Statutes 1899. Chancery jurisprudence and statutory jurisprudence may, under section 650, flow on concurrently without impinging on each other; and there is no reason why a suit to quiet title and to vest the title in plaintiff may not be maintained, nor why plaintiff should be compelled to resort, in such case, to his legal remedy, either under section 647 or otherwise.
    2. -: Misjoinder of Parties: Suit by Wife Against Husband) and Purchaser. There is no misjoinder of defendants in a suit by the wife against her husband and the purchaser of his ini terest in land at an execution sale, the purpose of the suit being to vest the title out of the husband and vest it in the wife, the purchaser being joined in order that his apparent record title, an obstacle to the relief sought against the husband, might he cleared away.
    3. -: -: Waiver. By answering over, defendant waives the defect, if any, in the joinder by the wife of her husband as a co-defendant.
    4. EQUITY: Instructions. The refusal of declarations of law in an equity suit cannot he error, for instructions fill no office in equity practice. The real issue is, did the decree do equity?
    5. JUDGMENT: Revival: Default. The fact that a citation was issued and the judgment revived, did not lend validity to the invalid judgment, if defendant did not appear. If the original judgment was not valid, neither was the revived judgment.
    6. EXEMPTIONS: No Notice: Void Sale. Failure on the part of the officer holding the execution to apprise the defendant head of a family of his right to select real estate in lieu of chattels given him by section 3159, Revised Statutes 1899, will not of itself render an execution sale of real estate void.
    7. LACHES: Deed to Wife and Husband. It is not the policy of the law to apply the doctrine of laches with nice particularity to dealings between husband and wife. And where land bought with the wife’s money is deeded to both her and; her husband, and she asserts her ownership of it soon after a creditor of her husband seeks to disturb her interest by having an undivided half of it sold to pay his debt, she is not chargeable with laches.
    . 8. -: -: Purchaser of His Interest. And where such creditor of the husband did not change his condition upon any information from her as to the character of her possession of or claim to-the land sold under his judgment, and did not become the husband’s creditor or obtain judgment against him in reliance upon any record title allowed by the wife to remain in him; and where the creditor is shown to have pursued his insolvent old debtor, in a long quest for a small debt, going to the extent of spending one dollar for every dollar of the debt, there is no natural justice hack of the claim, and no laches is chargeable to the wife for failing to sooner bring her suit to have the sale and deed obtained by the husband’s creditor at the sale, set aside, and the title vested out of her husband and vested in her.
    9. EQUITY: Accident: Loss of Note. Accident fell under the head of equity jurisprudence, and loss or. destruction of a hill or note falls under the head of accident. And the statutory requirements as to what is now to he done when a suit is brought on a lost note, amount to what was formerly required to be done in chancery — that is, purging the conscience of the plaintiff,' under pains and penalties of perjury, in regard to Its loss and destruction before he may proceed to judgment.
    10. LOST NOTE: No Affidavit: Judgment Void. A justice of the peace has no jurisdiction to render judgment by default on a lost note unless there is the statutory affidavit. Without that affidavit the judgment is void, and may be attacked collaterally.
    11. WIFE’S SEPARATE MONEY: Deed to Husband: Sale Under Execution. A deed to a husband of land bought in 1890 with the separate means of the wife conveyed only the bare legal title to him unless it was so made with her written consent, and, barring estoppel and fraud, the entire beneficial interest was in her and a resulting trust in her favor, enforceable in equity, at once sprang into existence; and fraud and estoppel being absent, an execution sale under a judgment against the husband, conveyed no title whatever as against her.
    Appeal from Clinton Circuit Court.— Hon. Alonzo D. Burnes, Judge.
    Afeirmed.

      E. G. Hall for appellants.
    (1) The petition shows no equity in plaintiff’s claim as against defendant Wright, because no scienter is alleged and plaintiff had her remedy at law. R. S. 1899, sec. 647; Cadwaleder v. Atchison, 1 Mo. 659; Cabanne v. Lisa’s Exr., 1 Mo. 683; Alnut v. Leper, 48 Mo. 319; Thias v. Seiner, 103 Mo. 314; Lenox v. Harrison, 88 Mo. 491; Jones v. Paul, 9 Mo. 293; Merry v. Fremon, 44 Mo. 518. (2) There was a misjoinder of parties defendant as well as a misjoinder of causes of action. Defendants’ interests were not united. Clarmorgan v. G-uisse, 1 Mo. 141; Stalcup y. Garner, 26 Mo. 72. (3) The statement filed by defendant Wright in his action against Jacob I. Hudson in the justice, court was sufficient to give that court jurisdiction. Mitchell Furniture Co. v. Payton, 4 Mo. App. 564; Pol-ham v. Railroad, 45 Mo. App. 153; Lord v. Koonig, 7 Mo. App. 453; Damhorst v. Railroad, 32 Mo'. App. 350; Lin v. Railroad, 10 Mo. App. 125; McCrary v. Good, 74 Mo. App. 425. (4) It was not necessary, to confer jurisdiction on the justice court, that the statement he sworn to or an affidavit filed in support thereof. Sublett v. Noland,. 5 Mo. 516; Kleiblodt v. Grober, 6 Mo. App. 574. (5) A statement filed before a justice which is sufficiently specific to bar another action upon the same matter is all that is required. Damhorst v. Railroad, 32 Mo. App. 350 ; Johnson v. Kahn, 97 Mo. App. 628; Manley v. Cresent Co., 103 Mo. App. 135; Cunningham v. Dickerson, 104 Mo. App. 410; Van • Cleave v. St. Louis, 159 Mo. 574. (6) It is not essential to confer jurisdiction on the justice that the written contract sued on be filed before summons issued. Livery Co. v. Freber, 102 Mo. App. 315; Heinrich v. Coal Co., 102 Mo. 229. (7) Judgments of justices of the peace are no more subject to collateral attack than judgments of courts of record. And the law will presume on such attack that the affidavit, if it was necessary, was filed in support of the petition in the justice court. Railroad v. Warder, 73 Mo. App. 117; Meyers v. Miller, 55 Mo. App. 338; Martin v. McLean, 49 Mo. 361; Cox v. Boyce, 152 Mo. 576; Cox v. Hunter, 152 Mo. 584; Wilson v. Coleman, 88 Mo. App. 564; Hope v. Blair, 105 Mo. 93; Atwood v. Atwood, 55 Mo. App. 370; State v. Dugan, 110 Mo. 138; Lingo v. Burford, 112 Mo. 149; Holt Co. v. Cannon, 114 Mo. 514. (8) Irregularity in or want of verification of any pleading will not render the proceedings subject to collateral attack. Gildeson v. Knight, 71 Mo. 403; Sloan v. Mitchell, 84 Mo. 546; Livingston v. Allen, 83 Mo. App. 294.

      W. S. Herndon for respondent.
    (1) The justice who rendered the judgment upon which the execution was based had no jurisdiction, because neither the note nor an affidavit of its loss or destruction was at any time filed with the justice. R. S. .1899, secs. 3852, 3854, 6138, 6140; Ins. Co. v. Foster, 56 Mo. App. 197; Orín v. Zeigler, 46 Mo. App. 193; De Yore v. Slacker, 49 Mo. App-. 548. (2) It necessarily follows that where the note is lost or destroyed, the affidavit required by the statute must be 'filed in order to give jurisdiction. While the appellate courts of this State have not passed directly on the effect of a failure to file the affidavit, yet they have always recognized the necessity of such affidavit. Harryman v. Robertson, 3 Mo. 449; Bank v. Kesler & Marks, 53 Mo. 382; Lemon, Hose & Go. v. Cross, 60 Mo. 173; Warder & Co. v. Libby, 104 Mo. App. 140; Hogan v. Kaiser, 113 Mo. App.. 711. (3) There was no appearance by defendant either at the time the judgment was rendered or at the time of its revival, and hence there could be no waiver of the statutory affidavit, as in Sublett v. Noland, 5 Mo. 516; Rhea v. Mfg. Co., 81 Mo. App. 400. (4) The undisputed evidence shows that Jacob I. Hudson had no personal property whatever at the time of the levy and sale of the land by the sheriff to defendant Wright; that said Hudson was the head of a family; he and his wife ■living on the land, in the county; that his interest if any in the land was less than three hundred dollars value. That he had no notice of the execution, levy or sale,; that the sheriff did not apprise him of his exemption rights as required by section 3163, Revised Statutes 1899; and that he claimed the same as exempt. The sale was therefore void or at least he had the right to have the sale set aside as prayed in his answer. Bank v. Gruthrey, 127 Mo. 189; St. Louis Brewing Assn. v. Howard, 150 Mo. 450; Stinson v. Call, 163 Mo. 323. (5) This is an equity case, and the finding of facts by the trial court is not final. This court must determine for itself both the facts and the law, under the evidence in the record. Blount v. Spratt, 113 Mo. 48.
   LAMM, J.

Sarah A. Hudson lodged her bill in equity against her husband, Jacob I., and one Jubal A. Wright, having for its object, first, to,set aside a sheriff’s deed dated September 14, 1902, conveying to said Wright the interest of said Jacob I. in and to a described part of the northeast quarter of the northeast quarter of section 4, township 56, range' 32, in Clinton county; second, to vest the fee of said land in her. The decree, nisi, went in her favor — Hudson abiding the event of the trial, but Wright appealing here.

In substance, so far as material, the case on the pleadings is this: It is alleged that Wright sued Jacob I. Hudson in 1895 before a justice of the peace on a lost or destroyed promissory note, making and filing no affidavit of its loss or destruction. Summons issuing, service was had, an indemnifying bond was filed, Hudson made default and in due course judgment followed for $66.70, plus costs. Not being paid, thereafter, in February, 1902, a citation issued to revive said judgment, and judgment of revival was entered for the sum. of $98.35, plus costs — defendant again making default. Execution again issued, a return of nulla hona was had and, on a transcript filed in the office of the clerk of the circuit court, a transcript execution issued and was levied upon the apparent interest of said Hudson in said land. It is further alleged that, on advertisement, a sale and sheriff’s deed followed, the latter based on a bid of twenty dollars, which deed, having been duly executed, was placed of record in September, 1902.

This is the deed plaintiff desired to annul to clear up her title; and, to do so, averred the judgment of the justice was void for want of jurisdiction to render it because no affidavit of the loss or destruction of the note was made at the time of bringing the suit, or at any other time. Other grounds, claimed to show lack of jurisdiction are alleged, but, absent proof tending to sustain them, they may be put aside.

The bill averred, further, that plaintiff purchased the parcel of land in question in 1900 from Henry N. and Joseph S. West for twelve hundred and fifty dollars, to-wit, three hundred and fifty dollars paid down and the assumption of an existing nine hundred dollar mortgage; that instead of making a deed to her alone, the deed, without her knowledge or consent, wás madeto defendant Hudson and plaintiff,, husband and wife; that she at once went into possession of said land; and, since then, had paid three hundred and nineteen dollars on the mortgage debt; that said payments first and last were from her sole and separate money and means, in which her husband had no right or interest; that she is the owner- of said tract of land; that said Jacob I. Hudson never had any right or interest therein; and that said sheriff’s deed constitutes a cloud on her tittle.

Defendant Hudson answered-, admitting each and every allegation of his wife’s bill. Further, and by way of cross-petition, he alleged that, as ag'ainst all persons except plaintiff, he claimed the ownership of an interest in the land; that such interest was exempt from execution; that notwithstanding it was so exempt, his co-defendant caused a transcript execution to issue as alleged in the bill and caused his said interest to be levied upon, advertised for sale and conveyed to him; that he, Hudson, was the head of a family; that he owned no personal property, then or.now; that said real estate was incumbered for one thousand dollars; that it was worth less than one thousand five hundred dollars; that his interest therein was of less value than three hundred dollars; that the sheriff holding and executing the writ of execution did not notify him of that fact and did not apprise him of his exemptions as the head of a family under sections 3158, 3159, 3162, Revised Statutes 1899, as required by section 3163, nor of his right to hold his said interest exempt, and took no steps to set off his exemptions — he, Hudson, having no notice or knowledge of the execution, levy or sale; that having no notice, he had no opportunity to claim his exemption, or to notify the sheriff that he claimed the same; that the judgment of the justice was void, as alleged in the bill; and, furthermore, he denied all the allegations of the separate answer of his codefendant Wright. . '

Wright’s answer denied all and singular the allegations in the bill not specifically admitted averred : that he is the owner of a half interest in the land “as tenant in common.or joint tenant with the plaintiff;” that he derived his title by virtue of the sheriff’s deed pleaded in the bill; that his codefendant was the owner of the “one undivided half as joint tenant with plaintiff prior to the sale and sheriff’s deed” which interest passed to him by the sheriff’s sale;.that the Hudsons are husband and wife, and that they (having a common end in view) instituted this proceeding to defraud him (Wright) out of his interest in said land— to that end Hudson, -making no defense, is aiding and abetting plaintiff; that the consideration paid for the West deed was derived from the proceeds of a sale by the Hudsons of another tract of land held under a former deed conveying it to them as joint tenants, dated in 1893; that during all times, from the first deed until this time, the title to said lands had been suffered by plaintiff to remain in that way, thereby giving her husband credit as owner; that defendant during all such times was a creditor of said Jacob I. Hudson and had attempted to collect his debt in good faith, spending in the pursuit thereof so much as one hundred dollars, without any notice of plaintiff’s claim of sole ownership ; and that if plaintiff furnished the money to buy the land in question, she has been guilty of such laches in failing to assert her claim- and in permitting the record to show title in her husband as to bar her right, if any, for equitable relief, etc.

Having pleaded as above, he asked that his interest in the land be protected; that the court declare him to be the owner and decree that possession be awarded him, etc.

By reply, plaintiff admitted the land mentioned in the petition was purchased with the proceeds of the sale of another tract of land (describing it), but she avers that said- proceeds were also her sole and separate means in which her husband had no interest. Further replying, she put in issue all other allegations of Wright’s answer and renewed her prayer for judgment.

The case made below on the facts is this: In 1893 the Hudsons purchased a small tract of land in Clinton county for one thousand three hundred dollars, subject to two mortgages aggregating nine hundred and seventy-six dollars as part of said consideration, they swapping in on the land some stock belonging to Mrs. Hudson and took the title to themselves jointly— Mrs. Hudson verbally consenting to this arrangement, because being childless and old it was feared if she died before her husband the descent would be cast on her heirs to- the exclusion of her spouse. We do not find that Jacob I. Hudson paid anything on this land. The couple lived on the land until in the year 1900, when they sold it. After paying the mortgages, there was left a small sum, say, one hundred and sixty dollars, which at plaintiff’s demand was placed in the bank to her credit. In December of that year they purchased the little tract in question for one thousand two hundred and fifty dollars, subject to a mortgage of of one thousand dollars which they assumed, and settled on the tract as a home. The record is obscure as to how much was paid, but we think it sufficiently shows that whatever was paid at the time or subsequently was paid by plaintiff out of her separate means; though at one time, through an arrangement made by plaintiff, two hundred dollars was raised on the note of her brother-in-law and her husband and paid in on the land, together with plaintiff’s said bank deposit — she subsequently paying this note with her own funds. However that be (and through the fog of the record it is difficult to put one’s finger on the exact facts), it substantially appears that the husband paid nothing on the land. This conveyance was also taken in the names of both husband and wife, she then or subsequently becoming aware of that fact and making no objection, and the title remaining in this condition until the sheriff’s sale to be presently mentioned.

It seems that Jacob I. Hudson, possibly in 1879, executed a small note, which, being in circulation, came into the possession of one Smith as owner, and was taken up by a new note. Afterwards defendant Wright became the owner of this note and held it in 1895. In that year he sued on the note before Squire Finch, alleging the note to be destroyed and filing a statement with said justice to that effect, but the statement was not verified by affidavit as provided in the act regulating justice courts, section 3854, Revised Statutes 1899. Service was had on defendant and the proceedings ripened into a judgment for $66.70 — defendant defaulting; and plaintiff, before judgment, filing an indemnifying bond as provided by section 745, Revised Statutes 1899, regulating the practice in courts of record in suits on lost promissory notes. Failing to collect this judgment on execution process, finally in 1902 it was revived on citation in the sum of $98.38— defendant Hudson again defaulting. Process being issued on the revived judgment and due return of nulla bona had, a transcript was filed in the office of the clerk of the circuit court of Clinton county, an execution issued thereon, levy was made on the right, title and interest of defendant Hudson in the land in question, sale followed at sheriff’s vendue, and on September 14,1902, a sheriff’s deed was executed to the defendant Wright conveying- the interest of the judgment debtor to him. It was shown that no notice was given to Hudson of the issue or levy of this execution, and he remained in ignorance of the sale until the deed was placed on record, when Mr. Wright’s attorney notified him to 1 ‘ come down and fix the matter up. ’ ’

Defendant Hudson was a witness and his evidence was objected to; but as such objections are not pursued on appeal, they will not be noticed. Among other things he testified that h'e owned no personal property at any time after the original judgment in the justice court to the date of the trial; that he was seventy-two years old; that he and his wife had lived in Clinton county for twenty-five years; that the land in question was worth thirty-five dollars or forty dollars per acre; and that there was an eight hundred dollar mortgage against it. On cross-examination he said he claimed the property as exempt; that he didn’t “claim it as exempt under the law,” but “I claim it as my wife’s, you know, and not my own.”

Defendant Wright testified he examined the records and discovered the deeds to Hudson and his wife; that he had spent ninety-six dollars in trying to collect the note; that he had talked with his codefendant Hudson, who had not said anything about his wife claiming to own the land, and that he, Wright, “never knew of plaintiff claiming more than one-half interest in this land. ’ ’ This evidence was supplemented by an attempt to break down the credit of his codefendant as a truthful man. To that end testimony was introduced by two witnesses that his reputation -for truth and veracity was not good.

Such was the evidence.

Appellant ashed certain instructions, which being refused, exceptions were saved. He then ashed a finding of facts, and one was made by the chancellor, but as such finding was in favor of respondent and is deemed somewhat advisory on appeal, it need not be set forth.

On this record, should the decree, nisi, stand? We think so, because:

I. Appellant insists the petition shows on its face a want of equity, i. e., states no cause of action. The gist of this contention is that plaintiff had a remedy at law, and we are pointed to section 647, Revised Statutes 1899, for a so-called legal remedy. But appellant leans'on a brohen staff, since section 647 was repealed by necessary implication by the act of March 15, 1897, Laws 1897, p. 74 — now sec. 650, R. S. 1899, et seq. [Meriwether v. Love, 167 Mo. 514.] The force and effect of that decision was such that, for all purposes of quieting title, the clumsy and inadequate provisions of section 647 were made obsolete, and old things having passed away, all things became new.

Considering section 650, which provides a remedy to determine interests and quiet title, whether legal or equitable, it ought not to be held that it was in the legislative mind not only to repeal the former statute relating to quieting title (sec. 647), but also to oust the ancient jurisdiction of courts of equity to remove clouds from title, to declare resulting trusts and to vest out of one person and into another the title to land. This court has never held that suits under section 650 are to be tried strictly as actions at law (for instance to a jury), nor that said section overturns the recognized jurisdiction of courts of chancery; and it is not perceived why chancery jurisdiction and the statutory jurisdiction under section 650 may not flow on parallel and concurrently without impinging on each other and without a wound to equity jurisdiction as the fathers handed it down to us. [Baldwin v. Davidson, 139 Mo. l. c. 126-7, and cases cited.]

II. Appellant next insists “there was a misjoinder of parties defendant as well as a misjoinder of causes of action. Defendants’ interests were not united.” It is trne that in one (i. e., a colloquial) sense there was a misjoinder. Certain it is that the two defendants did not work well under the same yoke, but pulled in opposite directions — defendant Hudson, as husband, bending to the wishes of plaintiff, his wife, as a bow does to the cord, and both bow and cord in this instance aiming the self same arrow at "Wright; but in a legal sense there was no misjoinder of parties or causes of action. Hudson was made a defendant so that, as between him and plaintiff, his apparent title should be vested out of him and into her; and Wright was made defendant in order that his apparent record title to the same land might be cleared away as an obstacle to the relief sought against Hudson.

Not only so, but such defect, if any, was waived by answering over. Section 598, Revised Statutes 1899, provides, among other things, that: “The defendant may demur to the petition, when it shall appear upon the face thereof, either: . . . fourth, that there is a defect of parties plaintiff or defendant; or, fifth, that several causes of action have been improperly united. ... ” Section 602 provides that: “"When any of the matters enumerated in section 598 do not appear on the face of the petition, the objection may be taken by answer. If no such objection be taken, either by demurrer or answer, the defendant shall be deemed to have waived the same, excepting only the objection to the jurisdiction of the court over the subject-matter of the action, and excepting the objection that the petition does not state facts sufficient to constitute a cause of action.”

Expounding this statute, it has always been held that, absent a demurrer when such defect, if any, exist, be on the face of the petition, as here, it comes too late after answer to raise such question. [See authorities collated in Mo. Ann. Stat. 1906, at page 629, et seq.] The point is ruled against appellant.

III. Error is assigned in the refusing of appellant’s declarations of law. But instructions fill no office in equity practice — ergo, are out of place in this case. The question here is not what views the chancellor may have had on the law — the heart of the matter is: Lid the decree do equity? And that is the impelling question we must seek out an answer to on appeal, and none other. [Bouton v. Pippin, 192 Mo. l. c. 474, et seq.] There is no merit in this assignment of error.

IV. Appellant comments, arguendo, on the fact that a citation was issued and the justice judgment was revived. If Hudson had appeared to this citation the question might take on a new form. But failing to appear thereto, he continued his old default; find since a citation to revive a justice judgment is not a new suit, but is merely ancillary to the old proceeding (Ellis v. Jones, 51 Mo. l. c. 187; Sutton v. Cole, 155 Mo. l. c. 211), it is obvious that the revived judgment is not the starting point but that the original judgment is, and hence must be valid to support appellant’s transcript execution and sheriff’s deed. The point is ruled against appellant.

V. Appellant’s theory is that Hudson had an interest in the real estate in question subject to execution levy and sale. Respondent does not concede that theory, but,-for purposes of argument, meets appellant half way and says that if appellant’s theory be true, then Hudson was entitled to an exemption in said real estate to the amount of three hundred dollars; and that as he had no chance to claim such exemption and his interest in the land on the showing made was of a'less value than three hundred dollars, therefore the levy, sale and deed were one and . all void. This contention arises from respondent’s application of the exemption statutes to the record facts and may be stated thus: The record shows Hudson was the head of a family and had no personal property whatever. Having none, there were necessarily absent the ten head of hogs, the ten head of choice sheep' (with their product in wool, yam or cloth), the two cows and calves, the two plows, the one axe, hoe and set of plow gears and necessary farm implements for the use of one man, and the two work animals and feed of the value of twenty-five dollars, exempted by the first two subdivisions of section 3159, Revised Statutes 1899. Absent these specific kinds of exempt chattels, respondent argues that under section 3162, Hudson, as the head of a family, had the right in lieu thereof to select an interest or amount of • land of the value of three hundred dollars as exempt— that section so providing.

It will be seen that the debt in suit was older than the acquisition of a homestead. Therefore, the absolute exemption of a homestead, as such, is not involved in this case. The question is, whether a failure on the part of the officer holding the execution to apprise Hudson of the chattels exempt under sections 3159 and 3162, supra, and apprise him of his right to hold the same or an equivalent value in land as exempt from execution sale, of itself renders the sale and deed void?

Whatever may be the individual views of the writer on the wisdom of exacting the nicest compliance with exemption statutes, in order to further the beneficent purposes underlying them, yet it' cannot be held that the punishment meted out on non compliance with section 3162, supra, goes so far as to make void an execution levy and sale of real estate. [Finley v. Barker, 110 Mo. l. c. 408.]

In that case it was held that (absent an absolute homestead right) the failure of the officer to apprise the execution defendant of his exemption rights might give some other right of action, if injury was sustained; but that such injury “cannot be taken as a substitute for the selection of the property sold, which the defendant might or might not have made.” To the same effect is Chance v. Norris, 143 Mo. l. c. 238. In Paddock v. Lance, 94 Mo. 283, the question was under consideration, but in that case the issue was not within the pleadings and was not passed on. So here, respondent did not tender any such issue in her bill; neither did appellant tender any such issue in his answer. Such issue is lugged into the case by Hudson in his answer as a makeweight in favor of plaintiff.

It has been held that a timely motion to quash an execution lies if the execution defendant be the head of a family and has not been apprised of his exemption rights to select real estate in lieu of chattels. [Stinson v. Call, 163 Mo. l. c. 330, et seg.] In that case Division Two held this court had jurisdiction of an appeal from an order sustaining a motion to quash an execu- tion levy on real estate. Such ruling was made on the authority of McAnaw v. Matthis, 129 Mo. 142, in which Division One held the same way. Both these cases, as authority on that particular point, have been questioned and overruled. [State ex rel. v. Elliott, 180 Mo. 658; Lawson v. Hammond, 191 Mo. 522; Snodgrass v. Copple, 203 Mo. 480.]

What was said, therefore, in Stinson v. Call on other points must he considered as said in a case in which we had no jurisdiction and is to be taken as obit-er; but it is of the character of obiter referred to by McCormick, J., in Bucki & Son Lumber Co. v. Fidelity & Deposit Co., 109 Fed. l. c. 401, as being “of a grade so high that the line between it and authoritative decision is too shadowy to be discerned by average judicial acumen.” Nevertheless, if Stinson v. Call be taken as authority, yet it in no way militates against Finley v. Barker, supra, and Chance v. Norris, supra. Therefore, the point in hand is ruled against respondent.

VI. Disposition of the foregoing questions brings us to the crux of the case. Thus, it is asserted by respondent and denied by appellant that the justice judgment at the root of appellant’s title is void for want of jurisdiction of the subject-matter; and this because the affidavit contemplated by section 3854 is absent. That section provides that if the instrument upon which the suit is founded (in this case a note) is lost or destroyed, then the plaintiff should file with the justice the affidavit of himself or some other credible person stating such loss or destruction and setting forth the substance of such instrument. On the other hand, it is argued by appellant that at the utmost the absence of the statutory affidavit is a mere irregularity and does not open that judgment to collateral attack. The chancellor found there was no affidavit. Following that finding, he held the judgment was void because the statutory affidavit was necessary to confer jurisdiction of the subject-matter on the justice of the peace. It is argued the finding was erroneous, and the decree must necessarily fall — not only because of such error, but because respondent was guilty of laches.

(a) As dispositive of the question of laches, suffice it to say that Mrs. Hudson, as between her and Wright, asserted her ownership of the land presently after Wright sought to disturb her interest. There was no laches there — nó sleeping on her rights. And if the matter of laches be viewed as between husband and wife, then appellant, an outsider, has no concern as a stranger with that view of the matter — one should not put’his finger between the tree and the bark. It has never been the policy of the law to apply the doctrine of laches with nice particularity to dealings between man and-wife. [Stevenson v. Smith, 189 Mo. l. c. 467.]

Moreover, Wright did not change his condition upon any information from Mrs. Hudson as to the character of her possession of, or claims in, the real estate in question; he did not become Hudson’s creditor, or obtain his judgment in reliance on any record title allowed to remain by the wife in the husband. This being so, appellant’s case does not come within the doctrine of Leete v. Bank, 115 Mo. l. c. 204, and Bank v. Winn, 132 Mo. 80, where questions of fraud and estoppel are involved.

Sometimes a great light is thrown upon a situation through a very small.crevice; and, in this case, where a creditor has shown such zest in the long pursuit of a small debt from an insolvent old man that he spent a dollar of good money for every dollar of doubtful debt in sight, it comes with ill grace for him to now suggest that such pursuit and expense took on color from the acts and conduct of an old wife, mops consilli, whose humble life happily may have passed unvexed with the solving of the subtleties of the law as applied to married women and relating to estates by entireties or otherwise. There being no natural justice back of it, the claim of laches is ruled against appellant. [Bucher v. Hohl, 199 Mo. 320.]

(b) Was the justice judgment void because of a failure of jurisdiction of the subject-matter?

The loss or destruction of a bill or note falls under the head of accident, and “accident” was always a head of equity jurisprudence — witness the doggerel of Sir Thomas More compressing these heads into two lines, viz:

“Three things are helpt in conscience —
Fraud, accident and things of confidence.”

Suits on lost instruments, therefore, were . once cognizable alone in equity. [Barrows v. Million, 43 Mo. App. l. c. 83; Warder v. Libby, 104 Mo. App. l. c. 145; Hansard v. Robinson, 7 Barn. & Cress. 90; Crowe v. Clay, 25 Eng. L. & Eq. 451; Poster’s Adrar, v. Williams, 44 Ky. (5 B. Mon.) 197.]

By tbe law merchant and the common law, bills and promissory notes, contrary to the old rule governing ordinary choses in action, circulated from hand to hand by indorsement and delivery when to order, or by delivery alone when to bearer. The profert of the bill thus became an essential prerequisite to payment. Accordingly, it was of the essence of things in case of suit to see to it that such bill or note was put out of circulation when ostensibly merged in judgment. That is, the maker, indorser or acceptor was entitled to a shield against a recovery from any other person; and that shield was that the bill- or note be produced in court. Hence, the old learning was that if the bill or note be lost or .destroyed, relief could be had only in equity where the conscience of the plaintiff could be purged touching the loss of the instrument; and where, as the price of the decree, a suitable indemnity could be exacted of the plaintiff. It is true there came a growth in the law and that suits on lost instruments were finally entertained in England in courts of law; but in Missouri the right to sue on a lost note in a court of law had its origin in an express statutory provision which by implication recognized exclusive jurisdiction in chancery up to that time. [See 2 Mo. Terr. Laws, p. 257.] This statute, passed in 1831, provides in substance that an action on a lost or unintentionally mislaid promissory note, etc., shall be prosecuted as “a suit at law . . . without producing the same on the trial before any justice of the peace, or making profert of the same in any court of record, if he, she or they [the owner or assignee] will-make affidavit in writing, sworn and subscribed, . . . ” that the note had been lost or unintentionally mislaid, etc. The act further provided that a bond of indemnity should be taken. The foregoing act was repealed in 1835 (R. S. 1835, p. 384, sec. 33), and a new statute at once enacted (R. S. 1835, p. 350, sec. 6, et seq.), which, with some immaterial changes and reformulations of sections, may now be found in our Revised Statutes. [R. S. 1899, secs. 3852, 3854.] The statutory affidavit relating to the loss or destruction .of the note is but the statutory method of doing what was formerly done in chancery — that is, purging the conscience of the plaintiff, under the pains and penalties of perjury, in regard to its loss or destruction before he may proceed to judgment.

The statutory affidavit is thus seen to be borrowed from a wise doctrine of chancery and to serve a present and obviously useful purpose. The subject-matter of litigation here was that of a lost note. Now, in cases of lost notes, the justice either acquires jurisdiction by, or may not proceed to judgment without, the filing of such affidavit. [R. S. 1899, secs. 3852, 3853, 3859.] And to say the plain mandate of the statute may be struck to the ground, and that a justice judgment, rendered on default and in the teeth of the law, is valid, is going further than we are willing to go; for, in view of what has been said, a suit on a lost note before a justice of the peace is somewhat of a special proceeding. Hence, jurisdiction over the subject-matter, if not appearing in the judgment itself, should at least appear somewhere in the proceedings. [Carpenter v. Roth, 192 Mo. l. c. 669, et seq. See authorities cited in briefs of counsel.] Absent jurisdiction, the judgment was void, and, therefore, subject to collateral attack. [Hope v. Blair, 105 Mo. l. c. 92.] Being subject to collateral attack, the ruling of the chancellor was without error.

VII. But the decree may be sustained on another ground — the ratio decidendi below being immaterial •so long as the decree does equity, is within the pleadings and is based on record, facts.

The money paid for this land was the separate means of the plaintiff — a married woman. Snch means are within the protection of section 4340, Revised Statutes 1899, since the year 1875. This money could not become the property of her husband except by her full authority in writing, which authority was not given. The lack of consent pleaded in plaintiff’s bill may therefore fairly be construed to mean the lack of statutory consent. Hence, in so far as the husband acquired any record title and interest in the land, in the year 1900, by employing his wife’s separate means in its purchase, it was a bare legal title, the entire beneficial interest was in the wife, he was seized to her use and a resulting trust in her favor at once sprang into existence, enforceable in equity, and which (barring fraud and absent elements of estoppel, as here) was superior to the rights of prior creditors of her husband. [Owings v. Wiggins, 133 Mo. l. c. 633; Scrutchfield v. Sauter, 119 Mo. l. c. 625, et seq.; Seay v. Hesse, 123 Mo. 450 (see concurring opinion of Macfarlane, J., p. 460, et seq.); Hdw. Co. v. Horn, 146 Mo. l. c. 134; Palmer v. Alexander, 162 Mo. 127; McLeod v. Venable, 163 Mo. l. c. 541; Johnston v. Johnston, 173 Mo. l. c. 115.]

An execution levy upon a bare legal title, where the execution debtor had no beneficial interest in the land, and a sale convey no title whatever as against the cestui que trust.

Freeman states the rule to be (2 Freeman on Ex. (3 Ed.), sec. 173): “While, as a general rule, all legal estates in land are subject to execution, the rule is not applied to the detriment of persons for whose benefit the legal estate may be held. It is only when the holder of the legal title has some beneficial interest that it can be sold under execution. If he is a mere trustee, or if, for any reason, he holds the bare legal title for the benefit of another, an execution sale against him transfers no interest whatever. . . . The rule respecting the exemption from execution against the trustee of lands held in trust for another is not restricted to formal declarations of trust. It applies to all cases where, though the legal title is in the judgment debtor, he has no beneficial interest in the land. This may exist in trusts arising from operation of law, as well as in those formally declared in some declaration or conveyance. ’ ’ [Morrison v. Herrington, 120 Mo. l. c. 673.]

. Hudson, being trustee for his wife by operation of law, and holding whatever record title he had as a bare legal title, and being seized to his wife’s use, the execution levy upon and sale of his interest conveyed nothing, and the decree was right on this ground also.

There being no reversible' error, the judgment is affirmed.

All concur.


author: GRAVES, J.

text:
    STARK et al., Appellants, v. MARTIN et al.
    Division One,
    May 29, 1907.
    1. APPELLATE JURISDICTION: Motion to Affirm. If the appellate court kas no jurisdiction of tbe appeal, it will not pass on the merits of the respondent’s motion to affirm the judg meat on the ground that the appellant’s abstract does not comply with the rules of the court.
    2. -: Title to Real Estate: Priority of Liens. Where the most that can be said of appellant’s petition is that it seeks to have the instrument sued upon-declared to be a first lien on land and to have that lien foreclosed, and, the judgment if one had been entered for him might have been satisfied by a payment of money, title to real estate is not so involved as to give the Supreme Court jurisdiction of the appeal.
    Appeal from Schuyler Circuit Court. — Hi on. Nat. M. Shelton, Judge.

      Transferred to St. Louis Court of Appeals.

      S. W. Mills, John D. Smoot and Edward E. Campbell for appellant's.

      C. C. Fogle and Eigbee & Mills for respondents.
   GRAVES, J.

This is an action to have declared and enforced a conceived lien, upon forty acres of land in Schuyler county, and as a basis therefor, the following written instrument is pleaded, viz:

“This Indenture made and entered into this first day of June, A. D. 1894, by and between Jacob Sommer Jr. (P. O. Lancaster, Mo. 5 miles N. E. Lancaster, Mo.) of the county of Schuyler and State of Missouri, party of the first part, and Stark Bros. Nurseries & Orchards Co. of Louisiana, county of Pike and State of Missouri, parties of the second part;
“"Witnesseth, that the said party of the first part in consideration of the second parties selling and shipping to him in the fall of 1894 or spring of 1895, to Lancaster, Mo., railroad freight charges prepaid, one hundred dollars worth of fruit trees and binds himself, his heirs and assigns, to plant said trees on his farm containing sixty acres, situated, in Schuyler county, State of Missouri, and more particularity described as follows: N. E., N. E., sec. (29) twenty-nine; also west half N. "W., N. W., sec. twenty-eight (28), sections 28 and 29, township 67, range 14, boundaries north, John Casteel, east, Wm. Enlow, south, J. B. Nichols, west, James Jones, and to pay to the order of said second parties, their heirs or assigns, as evidenced by his ten promissory < notes to be executed by said first party to second parties when the aforesaid trees were shipped. One hundred dollars due and payable as follows: all deferred interest and payments and interest hereinafter particularly specified to date from the first day of December, 1894, one-tenth in one (1), one-tenth in two (2) years, one-tenth in three (3) years, one-tenth in four (4) years, one-tenth in five (5) years, one-tenth in six (6) years, one-tenth in seven (7) years, one-tenth in eight (8) years, one-tenth in nine (91) years, one-tejjth in ten (10) years, with interest at the rate of six (6) per cent per annum, and if the interest be not paid annually to become as principal and bear the same rate of interest; to the payment of which sums as the same shall become due the party of the first part binds himself, his heirs, assigns and grantees of and to the aforesaid described lands, the right being reserved to the said party of the first part to pay the full amount remaining unpaid and not yet due, together with accrued interest at any time he may elect within the period of nine (9) years next after date last above written. And the said first party for the purpose of obtaining this credit states that the above real estate is free and clear of encumbrances and that he claims the same with a perfect title, except mortgage for seven hundred dollars.
“In Witness Whereof, we have hereunto set our hands this the day and year first above written. “Witnessed by J. Chambers. Jacob Sommer (Seal.)
Stark Bros. (Seal.)”

This written instrument was duly acknowledged by Jacob Sommer, Jr., on June 2, 1894, and filed for record in the recorder’s office of Schuyler county, June 9,1894.

The prayer of the petition is as follows: .

“ Wherefore, plaintiffs pray that- they have special judgment for the sum of one hundred and sixty dollars and interest from the date of the filing of this petition and that said judgment be made a first lien on the land last described, to-wit, the east half of the northeast quarter of the northeast quarter of section 29, and the west half of the northwest quarter of the northwest quarter, of section 28, all in township 67, range 14, in Schuyler county, Missouri, that all equities of redemption be foreclosed and that said lien be enforced and that said real estate or so much thereof as may •be necessary to satisfy said judgment together with costs of suit be sold and that a special scire facias be issued thereupon and for costs and for general relief.”'

The petition charges the delivery of the trees as per the written instrument aforesaid, and the planting of the same upon the land in dispute, and a failure to pay the contract price. The petition further charges that at the date of the written instrument aforesaid the land was free and clear of incumbrance, except a mortgage of five hundred dollars to H. A. Brinkeman, and a second mortgage to Allen Updyke for two hundred dollars; that Sommer paid both of these mortgages in full October 16, 1895, and the liens thereby created were satisfied upon the margin of the record of said mortgages; that Sommer died November 1, 1895, but prior thereto, and on September 2, 1895, he and his wife executed a deed of trust covering^ forty acres of the land in the contract mentioned to the Phoenix Mutual Life Insurance Company to secure a loan of three hundred and fifty^ dollars; that in 1897, this deed of trust was foreclosed and the said forty acres of land sold to Jacob Gardner for six hundred and fifty dollars; that Gardner afterward conveyed said land to W. N. Enlow and Louis I. Enlow, and that they, upon the day of their purchase, executed a deed of trust to the Hill-Dodge Banking Company for one thousand and seventy-five dollars and also a deed of trust to John C. Mills for $53.75; that the Enlows thereafter conveyed to Ed. Martin. Ed. Martin, John C. Mills and the Hill-Dodge Banking Company were made defendants.

Defendants Mills and Hill-Dodge Banking Company file their separate answer in these words:

“The said defendants, John C. Mills and The Hill-Dodge Banking Company, for their separate answer to plaintiff’s petition, deny all allegations therein except as herein admitted and averred.
“Further answering, they aver that said Jacob Sommer, Jr., had no interest in the lands in said petition described on June 1, 1894, nor had he any interest therein until October 15, 1895, when he acquired the title thereto in fee; that in contemplation of purchasing said land and in order to raise the money to pay therefor said Sommer made a loan of the said Phoenix Mutual Life Insurance Company of three hundred and fifty dollars, on September 2, 1895, and to secure the payment of his note to said company, said Sommer on said day executed a deed of trust to said company, whereby he granted, bargained, sold and conveyed said forty acres of land described in said petition to said Phoenix Mutual Life Insurance Company, to-wit, the east half of the northeast quarter of northeast quarter of northeast quarter, section 29, and west half of northwest quarter of northwest quarter, of section 28, township 67, range 14, in Schuyler county, Missburi, with covenants of warranty, seizin and further assurance of title, with which three hundred and fifty dollars said Sommer paid the purchase price of said forty acres of land; that thereafter said deed of trust was duly foreclosed and said land duly conveyed under the power contained in said deed of trust to said Jacob Gardner on December 15, 1897, and said Gardner afterwards conveyed said land to said W. N. Enlow and Louis I. Enlow at the time stated; that said W. N. Enlow. and Louis I. Enlow duly executed deeds of trust to these defendants respectively as stated in the petition to secure the payment of the sums stated, which were for loans made for these defendants respectively in good faith, and which loans are wholly unpaid and said deeds of trust are still in full force and first liens on said lands; that said Enlows conveyed said lands to said Ed. Martin, who is now the owner thereof, subject to said deed of trust; that all of said conveyances were made in good faith, for valuable considerations and without notice of plaintiffs’ pretended claim and lien.
“Having fully answered, defendants pray to be discharged with their costs. ”

Defendant, Ed. Martin, answers thus:

“Now comes the defendant, Ed. Martin, and for his answer to plaintiffs’ petition in the above entitled cause denies each and every allegation therein contained.
“Por further answer, defendant says that he is the owner in fee of forty acres of land described in plaintiffs’ petition; that he bought the same in good faith and paid a valuable consideration for the same and had na notice whatever of ‘ plaintiffs’ pretended mortgage at the time of his purchase' or at any time prior thereto; that plaintiffs’ pretended mortgage is no lien on the land that defendant purchased for the reason that at the time the said Jacob Sommer gave said mortgage he had no title to the land.
. “Defendant having fully answered prays to be discharged with his costs. ’ ’

Defendants have filed their motion to affirm the judgment for alleged .failure upon part of plaintiffs, appellants, to comply with rules 11, 12 and 13 of this court. Plaintiffs thereafter filed application for leave to file additional abstract, which application was refused. The case thus stands upon defendants’ motion to affirm judgment.

The foregoing statement of facts is gathered more from the transcript on file, than from the so-called abstract of record.

I. At the very threshold, we are confronted with' the question of our jurisdiction. If the cause has been improperly brought by appeal, to this court, we have no right to proceed therewith, and should not pass upon the merits of defendants’ motions to affirm. It appears that' upon the trial, plaintiffs took a nonsuit, whether voluntary or involuntary it is not for us to say until after we have determined our right to hear this appeal. The appeal to this court was taken by plaintiffs.

Under these pleadings, have we jurisdiction of this appeal? The amount is insufficient to confer jurisdiction, and if we have acquired jurisdiction it is by reason of title to real estate being involved. Is title to( real estate involved within the meaning of section 12' of article 6 of the Constitution? We think not. The most that can be said of this petition is, that it seeks to have the written instrument sued upon declared a first lien upon the land in dispute, and then a foreclosure of such lien. In other words, it asks the court to find the amount of a lien and enforce the same by special execution prior to other admitted liens pleaded. Neither by the petition nor by the answers is it sought to have even a mortgage or deed of trust cancelled. At most the trial court was called upon to determine the mere priority of liens. The title, by all parties, is admitted to be in Ed. Martin. If the court had entered judgment for plaintiff, the same might have been satisfied by a payment of the judgment. In such cases we have held that title to real estate is not involved in such manner as to give this court jurisdiction. [Bruner Granitoid Co. v. Klein, 170 Mo. 225; Bailey v. Winn, 101 Mo. l. c. 658; State ex rel. Haeussler v. Court of Appeals, 67 Mo. l. c. 200; Baier v. Berberich, 77 Mo. l. c. 416; Corrigan v. Morris, 97 Mo. 174; Price v. Blankenship, 144 Mo. l. c. 208; Vandergrif v. Brock, 158 Mo. 681; Balz v. Nelson, 171 Mo. l. c. 689; Klingelhoefer v. Smith, 171 Mo. l. c. 463.]

In the early case of State ex rel. v. Court of Appeals, 67 Mo. l. c. 200, in an opinion by Hough, J., we said: “At the January .term, 1876, at St. Louis, we decided that suits on special taxbills, and to foreclose mortgages, and to enforce mechanics’ liens, were not suits involving title to real estate, and all such cases involving sums within the final jurisdiction of the Court of Appeals which were docketed in this court after the establishment of that court, were transferred to' it. ’ ’

Following this, in the case of Baier v. Berberich, 77 Mo. l. c. 416, which was a case wherein the judgment would directly affect the title to real estate, in distinguishing such case from cases of the class of the one at bar, ’we said: “The case contained in this record does not fall within the class of cases involving the enforcement of liens and taxbills and the foreclosure .of mortgages, in which the sole object of the proceeding is to subject the admitted title of real estate to liens and demands, and to enforce them against it by process.”

Black, J., in Bailey v. Winn, 101 Mo. l. c. 658, thus says: “This court has appellate jurisdiction fin eases involving title to real estate.’ It has been the constant ruling under this clause of the Constitution that cases having for their sole object the enforcement of taxbills and mechanics’ liens, and the foreclosure of mortgages do not involve the title to real estate. [Baier v. Berberich, 77 Mo. 414; Syenite Granite Co. v. Bobb, 97 Mo. 46; Corrigan v. Morris, 97 Mo. 174.] It is not enough that the judgment, when carried into execution, will affect the title to the land. The title must be involved .in the suit itself, and be a matter about which there is a contest.”

Price v. Blankenship, supra, states the law in the following language: “It is now firmly settled that to give this court jurisdiction under section 12 of article 6 of the Constitution, because the title to- real estate is involved, it must appear that the title to real estate will, in some way, be directly affected by the judgment to be rendered in the case. It wp,s not sufficient that the question of title may be incidentally, collaterally or necessarily inquired into to settle the issues. The judgment to be rendered must directly affect the title iteslf to the real estate. If the judgment rendered by the lower court could be satisfied by the payment of money without affecting the title to real estate, the case would not fall within our jurisdiction under this provision of the Constitution.”

Discussing our jurisdiction upon the question as to whether or not title to real estate is or is not involved, Valliant, J., in Klingelhoefer v. Smith, supra, speaks thus: ‘ ‘ There is no doubt but- that in the first suit mentioned, wherein these petitioners sued their mother to have a resulting trust in the land declared in their favor, title to real estate was involved, but in the suit in which this appeal was taken to the Kansas City Court of Appeals there was no title to real estate involved. The gist of the petition in the case and of the decree was that those daughters had knowingly and approvingly allowed the title to be taken in their mother’s name, and had thereby given her a credit on the faith of which the plaintiff had loaned the money which was the foundation of the judgment, and the prayer of the petition was that as to him the title should be deemed to be in the mother, and the land subjected to the payment of plaintiff’s judgment. And that was the decree. The title a*s between mother and daughters was not sought to- be disturbed, but because they had misled the plaintiff to his disadvantage by their behavior, the decree was. that their land should be charged with the debt. The title to real estate was not involved in the case, and the Kansas City Court of Appeals had jurisdiction. ’ ’

Beginning with State ex rel. v. Court of Appeals, supra, all the cases we have cited are approved in the very recent ease of Payne v. Daviess County Savings Assn., 198 Mo. 617.

We therefore conclude that title to real estate is not involved in this ca,se, and there being no other questions which would give this court jurisdiction we are without authority to further proceed with the case.

II. Having reached the conclusion expressed in paragraph one, it would not be proper to give any expression, either upon the merits of the case, or the alleged insufficiency of the record. The case should be transferred to the St. Louis Court of Appeals, and it is so ordered. And to the end that the Court of Appeals may be entirely unhampered in its review of all questions in the case, we vacate our former judgment overruling the application to file additional abstract of record. Plaving no jurisdiction, we desire to send the case to the Court of Appeals in just the condition in which it reached this court.

All concur.


author: VALLIANT, P. J.

text:
    STARK et al. v. ZEHNDER et al., Appellants.
    Division One,
    May 29, 1907.
    1. INSUFFICIENT ABSTRACT. In the absence' of a sufficient showing by the abstract that on the face of the court record proper there are entriSs showing that the motion for a new trial was filed, that it was overruled, and that a bill of exceptions was filed, the appellate court cannot consider any alleged error contained in the bill of exceptions.
    2. ABSTRACT: Bill: What They Should Contain. The abstract should distinguish between what it intends to say is shown by the record proper and what it intends to say is shown by the bill of exceptions. The bill of exceptions alone should contain the motions and exceptions to the rulings, but the record proper should show that the motions were filed and the rulings of the court upon them; it should also show that the bill of exceptions was filed and within time. The office of a bill of exceptions is to preserve those proceedings in a cause which do not appear in the record proper and the exceptions taken to the ruling; it cannot be used to preserve the record entries. It is made a part of the record only by proper entries in the record proper.
    3. NO RECORD ENTRIES: Matters Reviewable. Where the abstract contains no record entries showing the filing of a motion for a new trial, or the overruling of such a motion, or the filing of a hill of exceptions, nothing contained in the purported bill of exceptions can be considered on appeal, and nothing except the pleadings and judgment set out as a part of the record proper.

      i. LIMITATIONS: Reformation of a Deed. A right to maintain a suit in equity to reform a deed is barred after ten years from the date the right accrued. And if the deed was a lien on land given to secure the payment of money to become- due by annual installments, and the mistake in the description of the land was mutual, the right accrued as soon as the instrument was executed.
    5. -: -: Wife’s Lands: Money Judgment. Where the defendant husband executed notes in January,1892, to pay a certain debt, in ten annual installments, and secured their payment by a lien on land, and suit was brought on these notes in November, 1903, and the petition charges that the land was wrongfully described in the lien deed and asks that it be reformed, and defendant pleads the ten-year Statute of Limitations, and defendant’s wife comes in on application to be made a party and by separate answer alleges that the land never was her husband’s, but was bought with her money, wrongfully deeded to him, and pleads the ten-year Statute of Limitations to the plaintiff’s right to reform the lien, the judgment for plaintiffs, it being conceded that the right to a reformation of the lien is barred by limitation, cannot stand on the theory that as a personal judgment against the husband it is a lien on the land the title to which stands in the husband’s name on the record; because, if the land is really the wife’s (which cannot be determined on this appeal, since there is no bill of exceptions) the fact that the title stood in her husband’s name would not be conclusive of her defense.
    6. -: -: Possession of the land by defendant is not necessary to maintenance of a suit to reform a deed.

      7. -: -: Discovery of Mistake. The fact that plaintiffs did not discover the mistake in their lien deed for some years after it was executed did not prevent the running of the Statute of Limitations. Where the petition asks for relief on the ground of fraud, the action may be begun within five years af- . ter the discovery of the fraud, ten years being allowed for its discovery. But an allegation in the reply to defendant’s plea of the Statute of Limitations that the mutual mistake was not discovered until ten years after the deed was executed, and charging no fraud, such as that defendant, absconded or concealed himself so as to prevent the commencement of the action, states no defense to that plea.
    Appeal from Butler Circuit Court. — Eon. J. L. Fort, Judge.
    Reversed and remanded (with directions).

      E. B. Lents for appellants.
    (1) This action falls directly within the third clause of the statute and is barred by said statute. R. S. 1899, sec. 4272; Hoester v. Sammelman, 101 Mo. 619; Robsahl v. Lack, 35 Mo. 316. (a) The statute begins to run from the time the cause of action accrues. The cause of action accrues as soon as the party has a right to apply to the proper tribunal for redress. If there was á mutual mistake in these contracts, as alleged, plaintiffs had a right to apply to' the proper tribunal for redress, immediately upon the making and delivery of these contracts, and the statute began to run against them from that time. Hoester v. Sammelman, 101 Mo. 619; Tapley v. McPike, 50 Mo. 591; Robsahl v. Lack, 35 Mo. 316. (b) Plaintiffs ’ ignorance of their rights will not protect them, unless that ignorance is occasioned or brought about by improper conduct on the part of defendants. "Wells v. Halpin, 59 Mo. 95; Foley v. Jones, 52 Mo. 67; Hoffman v. Parry, 23 Mo. App. 27: (c) Statutes of limitation are favored in law and cannot be avoided unless the party seeldng to do so brings himself strictly within some exception. A party seeking to avoid the har of the statute on account of fraud must aver and show that he used due diligence to detect it, and if he had the means of discovery in his power he will be held to have known it. R. S. 1899, sec. 4299; Shelby Co. v. Bragg, 135 Mo. 300; Wood v. Carpenter, 101 U. S. 141; Buckner v. Calcóte, 28 Miss. 434; Nudd v. Hamlin, 8 Allen 130. (d) There is no allegation in the pleadings on behalf of plaintiffs which brings them within any statutory exception, which prevents the running of the statute; hence no such question can be heard in this court. (2) Equity will only relieve against mutual mistakes. The mistake of one party to a contract will not entitle him to relief unless the other party induced him to act under such mistake. Benn v. Pritchett, 163 Mo. 571; Henderson v. Beasley, 137 Mo. 203; Adkins v. Tomlinson, 121 Mo. 487; Mathews v. Kansas City, 80 Mo. 235; Cassidy v. Metcalf, 66 Mo. 531; Sternberg v. Ins. Co., 49 Mo. App. 255. Mistake on one side, without fraud of some kind on the other inducing the mistake, will not be sufficient to relieve the party making the mistake. Benn v. Pritchett, 163 Mo. 572; Norton v. Bohart, 105 Mo. 615; Page v. Higgins (Mass.), 5 L. R. A. 152. In this case there was neither allegation nor proof of any fraud inducing the mistake.

      David W. Hill for respondents.
    (1) “The Statute of Limitations will in no way affect the result of this suit,' for, if the court should hold that we did not have the right to reform the instruments according to the particular descriptions, the lien of the judgment of the circuit court attached upon the rendition thereof, while the legal title was and still is in Zelmder, and the land being his gnd the debt his, as conclusively shown by the evidence, the court under the facts of this case could not uphold the deed from him to his wife. (2) Zehnder, the mortgagor, had been in possession of the land in suit since the making of the contracts, and Mrs. Zehnder had not been in possession of the land, and she could, therefore, not invoke the Statute of Limitations as a bar, and neither could he, unless his possession had been adverse. Epperson v. Epperson, 161 Mo. 577; Cooper v. Deal, 114 Mo. 527; Michel v. Tinsley, 69 Mo. 442; Tucker v. Wells, 111 Mo. 404; Lewis v. Schwenn, 93 Mo. 26; Booker v. Armstrong, 93 Mo. 49. (3) We urge the court to dismiss the appeal herein for the reason that appellants ’• abstract of the record does not comply with the rules of this court and does, not conform to the laws of this State.
   VALLIANT, P. J.

This is a suit in equity begun November 14, 1903, to foreclose liens on certain land in Butler county. The petition is in three counts, each based on a separate contract, but all of the same character. The statements in the first count are to the effect that on December 17, 1891, defendant John Gr. A. H. Zehnder, being then the owner of a farm consisting of tbe south half of the southeast quarter of section 27, township 25, range 6 east, containing eighty acres, entered into a contract in writing with the plaintiffs whereby the plaintiffs sold and agreed to deliver to Zehnder three hundred fruit trees, to be planted on this land, for the sum of $125.50, to be paid in certain annual installments as therein specified, with sis per cent compound interest, the last payment to be made ten years from the date of the contract, and it was therein stipulated that the purchase price and interest should be a lien on the farm from the date of the contract until paid in full; that plaintiff had delivered the trees,'but defendant had failed to pay the price or any part thereof, that the contract was duly acknowledged and recorded January 2, 1892. But, the petition avers, that in drawing the contract “by mistake of all the parties” an erroneous description of the land was inserted in lieu of the true description above given. The prayer of the petition was that the contract be so reformed as to contain the correct description, that plaintiff have judgment for the price named and interest, that it be decreed to be a lien on the land, that the defendants’ equity of redemption in the same be foreclosed and the land, sold to satisfy the debt, interest and costs. The second count was based on a similar contract dated January 17, 1892, for eight thousand fruit trees at the price of $1,933 and interest, and the third count on still another contract of like character dated January 27, 1892, for one thousand trees at the price of $150 and interest, the payments, to be made as in the first count and the last to be made in ten years. All the trees were to be planted on the same land and a lien thereon granted to secure the payments under the three contracts. In each count it is averred that the plaintiffs delivered the trees as agreed, but that defendant had failed to pay for the same; that the same mistake in the description of the land occurred in each contract; the prayer in each count was of the same character as that in the first.

In the petition Zehnder was the only defendant named. He appeared at the return term and filed an answer, and at that term also appeared his wife Mrs. Zehnder who petitioned the court to make her a party defendant, which the court did, and she filed an answer wherein after a general denial she set up the plea that the land in question was hers, that her husband acting as her agent bought it, but without her knowledge or consent took the deed in his own name, that the purchase price was paid with her money, her separate statutory property, that the alleged contracts on which the plaintiffs sue if made as claimed were made without her knowledge or consent. In her answer is also the plea of the ten-year Statute of Limitations on the alleged right of plaintiffs to reform the contracts.

Zehnder’s answer admitted the signing of the contracts and then a general denial. It also' set up the affirmative plea that the plaintiffs imposed on him in the making of the contracts in certain respects which it is not necessary now to specify and he also pleaded the ten-year Statute of Limitations against the claim to reform the contracts.

The plaintiffs filed a reply saying that the fact that the land was not correctly described in the contracts did not come to-their knowledge until 1903, and as to Mrs. Zehnder’s claim the reply contained several averments intended by the pleader as a plea to estop her from claiming that the land was hers, but as the record before us is not in shape to go into the questions of fact it is not necessary to set out those averments.

The cause comes here on a short transcript, from which it appears that there was a judgment for the plaintiffs on all the counts granting the relief prayed, and from that judgment the defendants appealed.

I. Appellants have filed what they call, “Abstract in Lieu of Full Record,” in which is contained the pleadings, evidence and several statements as of the rulings and proceedings of the court in the progress of the trial and subsequent thereto, but it is impossible to tell from this abstract whether the alleged rulings and orders of the court appear on the face of the court record proper or are preserved only in the bill of exceptions.

Upon that condition of the abstract respondents base a motion to dismiss the appeal. We should not dismiss the appeal in this case because we have, in sufficient form, the pleadings, the judgment and the order allowing-the appeal, and appellants are entitled to show if they can that the judgment is erroneous on the face of the pleadings, but in the absence of a sufficient showing by the abstract that' on the face of the court record proper there are entries showing that the motion for a new trial was filed, that it was overruled and that the bill of exceptions was filed, we cannot consider any alleged error of the court contained in the bill of exceptions. [Hill v. Butler County, 195 Mo. 511, and other cases cited by respondents in their brief on this motion.]

The abstract should distinguish between what it intends to say is shown by the record proper and what it intends to say is shown by the bill of exceptions. The bill of exceptions alone should contain the motions and exceptions to the rulings, but the record proper should show that the motions were filed and the rulings of the court upon them. A statement in the bill of exceptions that a motion for a new trial was filed and that it was by the court overruled is not sufficient to show either that it was filed or that it was overruled. A bill of exceptions standing alone cannot prove its own validity, a statement therein that it was signed and filed is not sufficient evidence of the signing or filing. The bill of exceptions derives its right to recognition solely from the fact that the record of the court shows that it was filed. Those facts must appear on the face of the record proper- and when the abstract undertakes to state such facts it should state, if such is the fact, that the record proper so shows. It is not necessary or desirable to copy the record entries into the abstract, it is sufficient if the substance is stated. The office of the bill of exceptions is to preserve those proceedings in a cause which do not appear in the record proper and the exceptions taken to the rulings.

In this case there are no record entries showing the filing of a motion for a new trial, or the overruling of such a motion or the filing of a bill of exceptions, therefore we have nothing before us for consideration but the pleadings and the judgment.

II. The purpose of the petition is to reform the contracts and foreclose the liens. The petition states that it was the intention of the parties to describe,' as the land to be bound for the payment of the debt, the south half of the southeast quarter of section 27, township 25, range 6 east, but by mistake that land was not described in the contract, other land was described.

Among the defenses set up both by Zehnder and Mrs. Zehnder was the ten-year Statute of Limitations in reference to the plaintiffs’ right to reform the contracts. The plaintiffs’ only reply to that plea was that they did not discover the mistake until 1903. The contracts were made in December, 1891, and January, 1892; the suit was filed November 14,1903.

So far as Zehnder is concerned the petition prays two remedies; one a personal judgment against him for the debt, the other a reformation of the contracts and a foreclosure of the lien. To each of these demands the defendant had the right to plead separate defenses; if he makes good his defense to the first it ends the case in his favor without reference to the second, but he may fail in his defense to the first yet still prevail in the second. His plea of the Statute of Limitations is not directed to the question of his personal liability for the debt because the last installment of the debt was not due until January, 1902, but though the plaintiffs’ right of action for a personal judgment be not barred their right to' a reformation of the deeds may be. So far as Mrs. Zehnder is concerned the especial relief of reformation of the deeds is the only feature of the case in which she is interested, and to that she pleads the Statute of Limitations.

In the brief for plaintiffs it is said that even if the Statute of Limitations bars their right to a reformation of the contracts, still the judgment should stand, because as a personal judgment against Zehnder it is a lien on the land the title to which stands in his name on the record. Since we have concluded that we have no right to look into the bill of exceptions we do not know how the title stood at the date of the rendition of the judgment; but it would not be conclusive of this defense on the part of Mrs. Zehnder even if the title stood in her husband’s name at that date, because if, as between her husband and herself, it is her land, the equities to be adjusted between herself and a possible purchaser at a sheriff’s sale under execution against him would be different from those to be adjusted between herself and a possible purchaser at a foreclosure sale under a mortgage executed by her husband while the title stood in his name.

The aim of .the plaintiffs is to subject this land, as the property of Zehnder, to the payment of the debt he owes them; if they are satisfied with a personal judgment against him with the incidental rights that will flow from it, Mrs. Zehnder has no right to interfere in their suit to obtain such a judgment, but when they invoke the power of a court of equity to reform contracts which her husband made while he held the legal title to land that in equity belonged to her, so as to convert them into mortgages of her land, an act which, though it is said he intended to do and ought to have done, yet he in fact did not do, then she is entitled to be heard.

A right to maintain a suit in equity to reform a deed is barred after ten years from the date the right accrued. [Sec. 4272, R. S. 1899 ; Hoester v. Sammelmann, 101 Mo. 619.]

If there was a mistake in the description of the land in the written contracts, as the plaintiffs say there was, if it was the real intention of both parties to the contracts to fasten the lien on the land in suit instead of the land specified in. the contracts, the plaintiffs’ right to have the contracts reformed accrued as soon as the mistake occurred; they were not compelled to wait until Zebnder should make a breach in his promise to pay, they were entitled to have the correction made for their protection against other possible purchasers who might intervene while their debt in its installments was accruing. If the next day after these contracts were delivered the plaintiffs had filed a suit in equity to have them reformed, based on the same allegations that are now made, it would have been no valid plea, either in bar or abatement, for the defendant to have answered that the suit was premature.

It is said in the brief for plaintiffs that as for Mrs. Zehnder the Statute of Limitations will not avail her because the land was not in her possession but in that of her husband. It would not help the- plaintiffs ’ case if it were conceded that she was not in possession because the plea of the Statute of Limitations is as •good a defense for Zehnder as it is for Mrs. Zehnder. But the point is not well taken, for possession is not necessary to the maintenance of this plea; besides, if it were, if the land, as between Mrs. Zehnder and her husband, was hers, his joint possession with her was her possession. Epperson v. Epperson, 161 Mo. 577, to which plaintiffs refer on this point, does not sustain their position; that was an action in ejectment for land which defendant claimed under a deed which he claimed intended to describe but by mistake did not describe the land sued for; in addition to other defenses he asked equitable relief to correct the mistake. It was held that the defendant having taken possession of the land in 1870 as soon as the deed was executed and held possession until 1896, when the suit against him was begun, his possession prevented the Statute of Limitation from running against him. To claim the benefit of the rule there laid down the plaintiffs would have to show that they themselves had been in possession of this land all those years.

The only reply the plaintiffs made to the defendants’ plea of the Statute of Limitations was that they did not discover the mistake until 1903. That fact is not sufficient to prevent the running of the statute. In section 4273, Revised Statutes 1899, it is provided that an action for relief on the ground of fraud may be commenced within five years after the discovery of the fraud, allowing ten years in which to make the discovery. The pleadings in the record before us present no case under that clause of the statute; the case made in the petition is one of mutual innocent mistake. Section 4290 declares: “If any person, by absconding or concealing himself, or by any other improper act, prevent the commencement of an action, such action may be commenced within the time herein limited, after the commencement -óf such action shall have ceased to be so prevented. ” It is not charged that either of the defendants was guilty of any act that prevented the plaintiffs from commencing their suit to reform the deeds. Indeed the averment of mutual mistake negatives the idea of fraudulent conduct. In Wells v. Halpin, 59 Mo. l. c. 97, discussing the clause of the statute last above quoted, the court said: “The mere fact that

plaintiff was ignorant as to where his property was, and that in consequence he could not bring an action, will not be sufficient in itself to make his remedy availing. It must further appear that plaintiff was prevented from bringing his action in time by some com cealment or improper act on the part of defendants.” And in Hoester v. Sammelmann, 101 Mo. 619, already above referred to, the court applied the same rule to a proceeding in equity to reform a deed wherein the plaintiff had alleged that he was ignorant of the mistake until just before bringing tbe suit and also alleged in general terms, without specification of acts, tbat be was prevented from making investigations to get the correct description by acts and representations of tbe defendant. Tbe court held tbat ignorance of the mistake under tbe circumstances pleaded did not prevent tbe running of tbe statute.

On tbe face of tbe pleadings tbe plaintiffs’ right to sue in equity to have tbe contracts in question reformed in tbe particular of tbe alleged misdescription of tbe land was barred by tbe Statute of Limitations before tbe suit was begun; therefore, tbe judgment in tbat particular is erroneous and must be reversed, but tbe judgment is good as a personal judgment for so much money against tbe defendant John Gr. A. H. Zehnder.

Tbe judgment is reversed and tbe cause remanded with directions to the circuit court to enter judgment in favor of defendants on tbe plaintiffs’ demand to reform tbe contracts, to correct tbe alleged misdescription of tbe land, and to enter a personal judgment in favor of the plaintiffs against tbe defendant John Gr. A. H. Zehnder for $249.68 on tire first count, $3,954.41 on the second count, and $298 on tbe third count, with interest at six per cent per annum from June 23, 1904, tbe date of the judgment appealed from; tbat Mrs.' Zehnder go hence without day, and tbe plaintiffs and John G-. A. H. Zehnder each pay one-balf tbe costs in tbe circuit court.

All concur. -