author: GANTT, J.

text:
    FANNIE YALL, Appellant, v. SNOW et al.
    Division Two,
    March 5, 1907.
    1. FIRE-ESCAPES: Hotel: Liability of Keeper and owner. The act of 1901 requiring “the owner, proprietor, lessee or keeper of every hotel, which has a height of three or more stories” to “provide said structure with fire-escapes,” both the owner and lessee are liable for injuries to a lodger in the leased hotel due to a failure to construct such fire-escapes — but the initial duty to construct them is on the owner. And the word “owner” does not mean the owner of the business or the person conducting the hotel at the time of the fire, but the owner of the real estate. And this view is reenforced by section 4 of the act which provides that “all buildings hereafter erected in this State which shall come within the provisions of this law, shall, upon or before their completion, be provided with fire-escapes and any violation of this section shall constitute a misdemeanor on the part of the owner of such building” — thus resting the duty of providing fire-escapes for all buildings erected after the passage of the act upon the owner exclusively.
    2. -: -: -: Equities: Lease. Since the whole scope of the statute is to make the fire-escapes a part of the construction of the building itself, and it is unreasonable to cast upon the tenant the burden of building an expensive addition to a house to be so constructed as to become a part of it, the equities of the statute place the burden upon the landlord to construct them. Especially does the burden rest on him where the lease binds the lessee not to make any changes or alterations.
    3. -: -: -: When Act Went Into Effect. Nor does the fact that the owner was not himself conducting the building when the act of 1901 went into effect, nor the fact that it was then leased under a lease made in 1899 for a period of ten years, release the owner from liability for injuries received by a guest in a fire in 1902, due to a failure to erect fire-escapes to the hotel.

      4. -: -: -: Not Built for Hotel. If tie petition charges that the building was leased as a hotel and was occupied by the lessees as a hotel, it does not fail to state a cause of action because it does not charge that the building was constructed to be occupied as a hotel.
    Appeal from St. Louis City Circuit Court. — Eon. John A. Blevins, Judge.
    Reversed and remanded.

      Ernest E. Wood for appellant.
    (1) The obligation to erect fire-escapes is upon all of the parties named in the statute, but primarily upon the owner. The Legislature meant the owner of the building and not the owner of the business, as the building and not the business is spoken of in the statute. (2) The statute in section one places the duty of erecting fire-escapes upon the same person or persons for buildings already erected as it does upon buildings to be erected in the future. It must be the duty of the owner of the buildings in the future to erect necessary fire-escapes. Section one of the statute places the duty of erecting exterior stairways or fire-escapes upon, the same person or persons as it does the interior stairways and, therefore, primarily upon the owner or owners of the building. The terms of statute make the fire-escape a part of construction of the building itself. A fire-escape, from its very nature, is a part of the building. It is, therefore, primarily the duty of the owner to erect it when necessary. The statute says they must be stationary and made of iron. The .statute calls for stair fire-escapes, “constructed so as to be placed on a blank wall, ’ ’ with balconies to reach the opening doors or windows. No tenant would be called upon to build such an improvement on his landlord’s property. (4) , Under defendants’ contention that the person in charge alone is liable, neither the owner nor his lessee would be necessarily liable, as both might have the business in charge of some other person. (5) Even if defendants’ contention were true in an ordinary case, it cannot be true in this case, as the defendants leased the building as a hotel and thereby made it a hotel. In their lease they forbade the lessees from making any changes or alterations, commanded them to return the building over at the expiration of the lease as it was at the time' of the lease, and reserved the right of duty. The estate of the lessees in the building can be no greater than the lease gives them. (6) Under similar statutes the courts have held that it was the duty of the owner or owners to erect the fire-escapes. Landgraf v. Kuh, 188 111. 490; Abraham v. Bank, 16 N. Y. St. 750; McLaughlin v. Armfield, 58 Hun 376; Weily v. Mulledy, 78 N. Y. 310; Pauly v. Steam Gauge Lantern Company, 131 N. Y. 90; Gorman v. McArdle, 67 Hun 484; Huda v. American Glucose Company, 154 N. Y. 474; Schwander v. Birge, 46 Hun 68; Sewell v. Moore, 166 Pa. St. 570; McAlpin v. Powell, 70 N. Y. 126; In re Fire-Escapes, 2 Pa. Dist. Rep. 298; Rose v. King, 49 Ohio St. 213; Jetter v. Railroad,- 2 Abb. App. 598. (7) Under the general law of landlord and tenant, the exterior fire-escape is such an improvement as the landlord is called upon to make. 2 Wood on Landlord and Tenant (2 Ed.), sec. 38; 2 Shearman & Redfield on Negligence (5 Ed.), sec. 702a; 1 McAdam on Landlord and Tenant (3 Ed.), p. 440; Landgraf v. Kuh, 189 111. 490; Abraham v. Bank, 16 N. Y. St. 750; McLaughlin v. Armfield, 58 Hun 376.

      Collins & Chappell for respondents.
    (1) There is no duty under the common law upon any one to equip a building with fire-escapes. Pauley v. Steam Gauge & Lantern Co., 131 N. Y. 90; Jones v. Granite Mills, 126 Mass. 84; Keith v. Granite Mills, 126 Mass. 90; Schmalzreid v. White, 97 Tenn. 36; 13 Am. and Eng. Encyc. of Law (2 Ed.), 82 and note 1. (2) Section 9037, Revised Statutes 1899', has no application to this case. Yall v. Gillham, 187 Mo. 393. (3) Under the statute the duty of providing outside fire-escapes is imposed only upon the person who has the control, possession and occupancy of the building. Laws 1901, p. 219. (a) Statutes are to be construed with reference to the common law. Endlich on Interpretation of Statutes, sec. 127. A penal statute is to be construed strictly. Huies v. Railroad, 95' N. C. 434. The same rule of strict construction applies to statutes creating rights or fixing liabilities where none would otherwise exist, and to all statutes in derogation of the common law. Wilbur v. Crane, 13 Pick. 290'; Rogers v. Currier, 13 Gray, 139; West v. Railroad, 63 Ul. 545; Townsend v. Wilbur, 88 Ul. 197; Williams v. Vanderbilt, 145 111. 238; Dean v. Railroad, 119 N. Y. 540; Sutherland on Construction of Statutes, 374. (b) The liability is several and not joint, and is imposed upon only one of the classes enumerated in the act. Schott v. Harvey, 105 Pa. St. 122. (c) At common law the duty to keep premises in a safe condition is upon the person in occupancy and control. Murray v. Richard, 52 Hun 613; Keating v. Stevenson, 47 N. Y. 837; Railroad v. Walker, 45 Ohio St. 577; Kent v. Rogers, 44 Conn. 291; Proctor v. Railroad, 64 Mo. 112; Lee v. Smith, 42 Ohio St. 459; Burns v. Fuchs, 28 Mo. App. 279; Gibson v. Perry, 29 Mo. 247; O’Neil v. Flanagan, 64 Mo. App. 87. (d) The act cannot and is not intended to apply to one who cannot comply with its requirements. Maker v. Sla,ter Mill & Powder Co., 1 N. E. 176. (e) Section 4 of the act itself indicates- that it was the person in possession or control of buildings erected prior to the passage of the act upon whom the duty of erecting fire-escapes was imposed, (f) The statutes and decisions of other States reviewed: Willey v. Mulleby, 78 1ST. Y. 310; Pauley v. Steam Gauge & Lantern Co., 131 N. Y. 90; Gorman v. McArdle, 67 Hun 484; Huda v. American Glucose Co., 154 N. Y. 474; McLaughlin v. Arm-field, 58 Hun 376; Lee v. Smith, 42 Ohio St. 458; Grant v. Slater Mill & Powder Co., 14 R. I. 380 ; McCulloch v. Ayer, 96 Fed. 178; Landgraf v. Kuh, 188 111. 484; Schott v. Harvey, 105 Pa. St. 222. (4) The act relied on is uncertain, and therefore void. (5) The terms of the lease do not impose upon the owner of the fee the duty of erecting fire-escapes.

       Note. — Decided December 22, 1906. Motion for rehearing filed. Motion overruled March 5, 1907.

   GANTT, J.

This action was commenced in the circuit court of the city of St. Louis, on the 7th day of November, 1903. It is brought by the plaintiff as. the widow of Morris Yall, deceased, for damages accruing to her from the death of her husband by the burning of a certain three-story brick building in the city of St. Louis, located on the southwest comer of Olive and Beaumont streets, and numbered 2700 and 2702 Olive street.

The petition alleges in substance that Robert B. Show, the defendant, was at all the times herein mentioned, and is at present, the owner of the above-described property, commonly called the Empire Hotel. That on the 25th day of July, 1899, the defendant and others, owners thereof, leased said property as a hotel, to William E. and Katharine Gillham for a term of ten years, commencing on the first day of September, 1899, and to be fully completed and ended on the 21st day of August, 1909, the said lessees and all claiming under them, by virtue of the provisions of this lease, yielding and paying a total rent therefor to the said lessors or their legal representatives of $17,550, in monthly installments of one hundred dollars payable on the first day of each month of every year during the said term, and further stipulations of the lease are as follows:

“That the said lessee will not suffer or commit any deterioration of the said premises, nor suffer any nuisance in, upon or adjacent thereto; nor will they assign this lease, or underlet the whole or any part of the premises embraced therein, nor will they make any change or alteration in the building, nor permit them to be used or occupied in any manner other than herein specified, without the assent thereto of the said lessors, their heirs or assigns in writing be first obtained; that the said lessee will quit and deliver up the possession of the said premises to the said lessors, their heirs or assigns, peaceably and quietly, when this lease shall terminate by the limitation of its terms, or by forfeiture, in as good order and condition in every respect as the same are now or may hereafter be made by repairs, save only the wear thereof from reasonable and careful use and casualties from fire, not resulting from the design or negligence of the said lessees, their family, agents or servants. All the repairs deemed necessary by the lessees to be made at the expense of the lessees, with the consent of the lessors and not otherwise; the said lessors, their heirs or assigns shall at all reasonable times and hours have the right to enter upon and inspect the state and condition of said premises.” The petition then proceeds to allege that at all times mentioned herein the defendant and others collected rent for said property from the said lessees; that the said property is three stories in height and at all times mentioned therein the said property was conducted as a hotel or lodging house by the said Gillhams; that at all times mentioned herein said defendant knew that said property was being conducted as a hotel, or lodging house by the said lessees; that at all times mentioned herein it was the duty of the said defendant to provide the said hotel or lodging house, with fire-escapes, iron balconies and exterior iron stairs, as required by law. Plaintiff alleges that the said defendant, his duty as above alleged-neglecting, failed to provide fire-escapes as required by law or at all, and further failed to provide iron balconies as required by law or at all, and failed to provide exterior iron stairs in case of fire, as required by law, or at all. And plaintiff further alleges that on the 9th day of February, 1902, while the said hotel was being operated, with the knowledge of said defendant, on account of the negligence of the said defendant, there was connected with said hotel no fire-escapes, no iron balconies and no exterior iron stairs as required by law, or at all. That on the 9th day of February, 1902, Morris Yall, the husband of this plaintiff, was a lodger of said Gtillhams in the said hotel or lodging house; that the said Morris Yall occupied a room above the second story of the said hotel or lodging house, which said room so occupied had an outside window; that at about three o’clock a. m. on the 9th day of February, 1902, the said Morris Yall was aroused from his sleep on account, of fire in the said building, and being aroused, he tried to escape from the building, but was unable to do so owing to the fact of there being no fire-escapes, no iron balconies and no exterior iron stairs in connection with said hotel; that the said Morris Yall, being unable to escape from the said burning building on account of there being connected therewith no fire-escapes or iron balconies, came to his death within the burning building on account of being burned by fire. That if there had been fire-escapes, as required by law, connected with the said hotel, the said Morris Yall would have escaped thereby to the ground without injury to himself. That if there had been iron balconies connected with said hotel, as required by law, the said Morris Yall could have stood thereon and would have been rescued by firemen. That the death of said Morris Yall was due to the fact of there being no fire-escapes, no iron balconies and no exterior iron stairs connected with the said hotel or lodging house. Plaintiff alleged that the death of the said Morris Yall was due to the neglect of the said defendant in not performing his duty as above alleged, and in not providing their said hotel or lodging house with fire-escapes, iron balconies and exterior stairways. That plaintiff is the widow of the said Morris Yall; that the said Morris Yall was the only support of this plaintiff and her infant child, and that by the death of said Morris Yall, plaintiff has been damaged by the said defendants in the sum of five thousand dollars. Wherefore, she prays judgment against the defendant Robert E. Snow for five thousand dollars.

To this petition the defendant filed the following demurrer:

“Now, at this day comes the defendant in the above-entitled cause, and demurs to plaintiff’s second amended petition, and for ground of this demurrer, defendant states:
“First. That said petition does not state facts sufficient to constitute a cause of action, in this, that while it appears from the allegations of said petition that the defendant, with others, were the owners of the real estate therein described and the buildings thereon erected, it does not appear that the defendant and his co-owners were conducting a hotel or lodging house therein, and that there was therefore no duty resting upon the defendant under the law to provide or equip the said building with fire-escapes, iron balconies, or exterior iron stairs.
“Second. That said petition does not state facts sufficient to constitute a cause of action, in this, that while in said petition it is alleged that said defendant and others were the owners of real estate therein described and of the buildings thereon erected, it is not alleged that said buildings were built to be occupied or used as a hotel or as a lodging house, and that there was therefore no duty resting upon the defendant to provide or equip the said buildings with fire-escapes, iron balconies, or exterior iron stairs.
< < Third. That said petition does not state facts sufficient to constitute a cause of action, in this, that it appears affirmatively from said petition that while said defendant and his co-owners of the real estate described therein and of the buildings thereon erected, it also appears that said buildings were erected and were leased by said defendant and his co-owners for a term of ten years prior to the passage of any law requiring any person to erect fire-escapes thereon, and that the said buildings were therefore, at the time of the passage of any law requiring the erection of fire-escapes, in the possession and sole control of the lessees under said lease.”

The circuit court sustained this demurrer and the plaintiff declining to plead further final judgment was rendered in favor of the defendant and for costs. Thereafter and during the same term, plaintiff filed his affidavit for an appeal to this court, which was allowed and granted.

At common law the owner of a building not particularly exposed to the danger of fire from the character of the work to be carried on in it, was not bound to anticipate the possibility of remote danger from fire, or that its occurrence would put in jeopardy the lives of his employees or tenants, and the law did not require, where the building was properly constructed for its intended use and purpose, the construction of fire-escapes, — the ordinary means of escape by stairs, halls, doorways and windows being deemed sufficient. [Pauley v. Steam Gauge Company, 131 N. Y. 90; Jones v. Granite Mills, 126 Mass. 84; Schmalzried v. White, 97 Tenn. 36.]

This action is bottomed upon the act of the General Assembly of the State approved March 27, 1901, which has been held by this court in Yall v. Gillham, 187 Mo. 393, to have superseded sections 9036 to 9045, Revised Statutes 1899, inclusive. In sustaining the demurrer to the petition the learned circuit court evidently was of the opinion that under the Act of 1901 the duty of providing outside fire-escapes was not imposed upon the owner of the building, but upon the person or persons who were in the possession and occupancy of the building at the time the Act of 1901 took effect and became operative, and that inasmuch as the defendant owner had, on the 25th of July, 1899, prior to the enactment of the said act, leased the premises to the Gillhams for a term of ten years from the first of September, 1899, and the said Gillhams were in possession thereof at the time of the fire which occasioned the death of plaintiff’s husband, the defendant was not liable for the failure to provide said structure with fire-escapes attached to the exterior of the said building as required by the Act of 1901. Since the fire out of which this action has arisen occurred, the General Assembly has amended the Act of March 27,1901, by changing sections 1, 2 and 3 of the said act (Laws 1903, p. 251), but the changes made in section 1, upon which this action is founded, have not changed the provisions of section 1 so as to affect the rights of the parties to this action.

The decisive question arising upon this record, is, was the circuit court right in holding that under the terms of this statute the owner of a leased building is not required to provide his building of the character described in the act with fire-escapes as provided by the act. Counsel for the defendant in their argument and brief have called our attention to a number of cases in other jurisdictions, notably that of the Supreme Court of Pennsylvania in Schott v. Harvey, 105 Pa. St. 222, and Keely v. O’Conner, 106 Pa. St. 321; Lee v. Smith, 42 Ohio St. 458, but an examination of the statutes upon which those decisions are based will show such a material difference from the language employed in the Act of 1901 of onr own Legislature, that those decisions afford ns very little assistance in reaching a proper construction of the act before us. "We are unable to adopt the construction put upon this act by the circuit court. The language of the statute is, “The owner, proprietor, lessee or keeper of every hotel, etc., in this State, which has a height of three or more stories shall provide said structure with fire-escapes, ’ ’ etc. The law places this obligation upon the “owner” and for the purpose of this case it is entirely immaterial that some other persons, to-wit, the lessees may also be liable. There are no such qualifying words appended to owners, proprietors, etc., as would justify us in holding that those words only mean the party lawfully in possession when the act took effect, or when the fire occurred. The command is plain and unambiguous, and is directed to “the owner” and the fact that it is also directed to “the lessee” or “the keeper” of the premises, in no wise excuses him from a failure to obey the statute. The statute is a most salutary one and remedial in its character. Its object is to protect human life, and, as said by the Supreme Court of New York, in McLaughlin v. Armfield, 58 Hun l. c. 378, “No reason is perceived why the court should strain after so strict a construction of its language as to deprive it of all useful operation.” The lawmakers have seen fit to impose this duty of providing fire-escapes upon hotel buildings and other structures mentioned in the statute for the benefit of the guests of such hotels, and the operatives therein employed, so that in case of fire they may have a way of escape. Not only does section number one designate “the owner” as one of the persons whose duty it is to provide fire-escapes, but section 4 of the statute reinforces his liability by providing: “All buildings hereafter erected in this State which shall come within the provisions of this law, shall, upon or before their completion, be provided with fire-escapes of the kind and number and in the manner set forth in this law, and any violation of this section shall constitute a misdemeanor on the part of the owner of such building, punishable as provided in section 5.” As to alPbuildings, then, erected after the passage of the act, it is obvions that the duty rested exclusively upon the owner himself.

Counsel for the defendant have favored ns with an exhaustive brief as to the meaning of the word “owner,” and as to the signification which should be attached to it in this statute in Schott v. Harvey, 105 Pa. St. l. c. 228, the. court very aptly remarked, “A number of authorities were cited, showing the construction which has been placed on the word ‘ owner ’ both by the Legislature and the courts. But the meaning of the word depends in a great pleasure upon the subject-matter to which it is applied, and as it is used in each of the instances cited in an entirely different connection, they throw scarcely a glimmer of light upon the question. The term ‘owner’ is undoubtedly broad enough to cover either view of the case.” If the construction for which the defendant contends should be adopted, it would convict the General Assembly, in our opinion, of having used a number of useless words. If the word “owner” was intended to mean the owner of the business, or the person conducting the hotel at the time of the fire only, then it was entirely unnecessary to name the owner or proprietor. Of all the statutes to which our attention has been directed by the learned counsel on either side of this case, the act of the Legislature of Illinois, approved June 29, 1885, entitled, “An Act relating to fire-escapes for buildings, ’ ’ approaches more nearly to our Act of 1901 than any we have examined. In the case, of Landgraf v. Kuh, 188 Ill. 493, the language of the statute was, ‘ ‘ The owner or owners, trustees, lessee, or occupants, of any building,” etc. And the same contention was made in that case as was made in this, but the Supreme Court, through Mr. Justice Magrttder, said: ‘ ‘ Cases may be found, decided in other States, where it has been held that the word, ‘ owner, ’ as used in statutes of this kind, means the person in possession of the premises destroyed by fire with the power of controlling the same. These cases place the responsibility upon the person in possession and occupancy of the property, and treat him as the owner for the time being,' on the ground that the nature of his business renders the erection of fire-escapes necessary to protect the lives of his employees. In other words, the word, ‘ owner, ’ is there held to be the owner of the business conducted in the building, and not the owner of the building itself. [Schott v. Harvey, 105 Pa. St. 222; Keely v. O’Conner, 106 Pa. St. 321; Lee v. Smith, 42 Ohio St. 458.] The construction thus contended for may have been proper, as applied to the statutes under consideration where such construction was adopted, but cannot be held to be the proper construction of the Illinois Act of 1885. Section 2 of the latter act provides that ‘all buildings of the number of stories and used for the purposes set forth in section 1 of this act, which shall be hereafter erected in this State, shall, upon or before their completion, each be provided with fire-escapes of the kind and number, and in the manner set forth in section 1 of this act.’ The fact that the buildings are to be provided with fire-escapes ‘ upon or before their completion, ’ indicates that the duty of providing such fire-escapes devolves upon the owners of the buildings. The fire-escapes are required to be a part of the construction of the building itself. Moreover, the notice, commanding such fire-escapes to be placed upon the building, is required by section 3 to be given to ‘the owners, trustees, lessee, or occupant, or either of them.’ The injunction being in the alternative, the notice may be given to the one, as well as to the other, and, therefore, to the owner, as well as to the lessee or occupant. We are, therefore, of the opinion that the appellees were not relieved from liability in regard to the placing of fire-escapes upon their building, because the fourth floor of the premises, where appellant’s intestate was at work at the time of his death, was in the possession and under the control of tenants of appellees instead of being directly in the possession of appellees themselves. ’ ’ The structure of our Act of 1901 is so similar in all material respects to that of the Illinois Act of 1885, that the construction placed upon that act by the Supreme Court of Illinois applies as well to the Act of 1901 as to the Illinois Act, and we think it is a correct and proper construction of our act.

But if we are to invoke what might be termed the equities of the statute, while it unquestionably does place the obligation upon the lessee to provide the fire-escapes in case the landlord has failed to do so, we think the statute imposes the initial duty upon the owner and rightfully so, because the whole scope of our act -is to make the fire-escapes a part of the construction of the building itself, and it is unreasonable as between the landlord and the tenant to cast upon the tenant the burden of building an expensive addition to the house which was to become so attached to it as to become a part of it. A fire-escape of the character and dimensions required by the act in question is a permanent one, and, as said by McAdam in his work on Landlord and Tenant (3 Ed.), vol. 1, p, 440, “It is not within the range of ordinary repairs which the tenant, in the absence of an agreement to the contrary, is required to make.” In 2 Shearman & Redfield on Negligence (5 Ed.), section 702a, 1212, it is said: “Inmost of the States, if not all, the owners and lessees of certain classes of buildings, exceeding a specified number of stories in height, such as factories, hotels and tenement houses, are required to provide extra precautions for the escape of the occupants in case of fire, by supplying ropes, outside ladders, doors or other appliances to that end. Under such an imposed obligation, the initial duty is on the owner. ’ ’ And, to the same effect is 2 Wood on Landlord and Tenant (2 Ed.), section 381. The doctrine thus announced is peeuliarily applicable to this case because the landlord bound his lessee “not to make any change or alteration in tbe building,” and the tenant might well have considered that a fire-escape of the character required by our statute would so change the appearance of the building as to constitute an alteration therein without the consent of the lessor, and, as already said, as between them and the owner, the duty in the first instance devolved upon their landlord, whatever their obligation to their guests might be.

Our conclusion is that the learned circuit court erred in holding, that the petition did not state a cause of action against the defendant as owner of the building, and that it was not necessary to charge the defendant to make the further allegation that he was conducting the hotel himself when the Act of 1901 went into effect and when the fire occurred.

As to the second ground of the demurrer, that it was not alleged that the buildings were built to be occupied as a hotel, it is sufficient to say that it sufficiently appears from the petition and the lease set forth therein, that the defendant leased the house “asa hotel ’ ’ and that it was conducted as a hotel by the tenants, the G-ill-hams, and the defendant knew it was being so conducted.

The third ground of demurrer is that the defendant owner had, prior to the passage of the Act of 1901, leased the premises for a term of ten years, and that at the time of the passage of the law requiring the erection of fire-escapes, the building was in the sole possession and control of the lessees and that therefore the defendant had no right of entry or control over the building to construct and provide the fire-escapes. We think there is little merit in this assignment in the demurrer. It would have been no violation of the lessees’ rights for the defendant to have entered upon the premises and erected the fire-escapes which the law commanded both the owner and the tenant to erect. It would have been an act in obedience to a duty to society and the tenant’s own guests and employees to protect them from injury by fire. This, point is expressly ruled against the defendant in White v. Thurber, 55 Hun 447, in which it was held that, “Where a landlord, upon the requirement and after notice from the department of buildings of the city of Brooklyn, enters upon demised premises for the purpose of making repairs required by said department, it is not a breach of the covenant of quiet enjoyment contained in the lease thereof.” No tenant would be heard in a court of justice to complain that his landlord had performed an act to make the leased premises safe for the occupants of the building, which act the law also required of the tenant himself.

It follows that the judgment of the circuit court must be and is reversed and the cause remanded for a new trial in accordance with the views herein expressed.

Burgess, P. J., and Pox, J., concur.


source: Caselaw Access Project

author: GrANTT, J.

license: Public Domain

text:
    COUTANT v. SNOW et al., Appellants.
    Division Two,
    March 5, 1907.

    1. NEGLIGENCE: Hotel: Fire-Escapes. For the reasons given in Yall v. Snow, ante, p. 511, the judgment in this case is affirmed, the point being that the proprietor as well as the keeper of a hotel is liable to guests whose injuries are due to a failure to erect fire-escapes as the statutes requires.
    2. NONSUIT: Surprise. If there is nothing in the record indicating an abuse of the court’s discretion in setting aside an involuntary nonsuit, which was done on the ground of surprise, supported by the affidavit of plaintiff’s counsel, the action of the court will be approved.
    Appeal from St. Louis City Circuit Court . — Hon. Jesse A. McDonald, Judge.
    Affirmed.

      Collins & Chappell for appellants.
    The trial court erred in setting aside the nonsuit for the reason that plaintiff did not use due diligence in preparing the case for trial. Howell v. Howell, 37 Mo. 124.

      Ernest E. Wood for respondent.
    The appellate court will not interfere with the discretion of the trial court in setting aside the nonsuit.

       Decided December 22, 1906. Motion for rehearing filed. Motion overruled March 5, 1907.

   GrANTT, J.

This is an appeal from an order of the circuit court of the city of St. Louis, setting aside an involuntary nonsuit which plaintiff had suffered at the March term, 1903, of the said court. The action is for damages occasioned by the death of plaintiff’s husband, by the burning of the buildings Nos. 2700 and 2702 Olive street in St. Louis on the 9th day of February, 1902.

The petition is in all respects, save and except the party plaintiff, and her deceased husband, exactly like that in Yall v. Snow, ante, p. 511, the opinion in which case has been handed down to-day. The answer is practically the same in both cases. The same principles of law must govern in each. Outside of the questions considered and decided in Yall v. Snow, is the propriety of the circuit court’s action in setting aside the nonsuit, and reinstating the case. This was done upon the ground of surprise, supported by the affidavit of plaintiff’s counsel, and was a matter within the wise discretion of the circuit court. "We find nothing indicating an abuse of the discretion of that court and for the reasons assigned in Yall v. Snow, the judgment of the circuit court in setting aside the nonsuit and reinstating the cause is affirmed.

Burgess, P. J., and Fox, J., concur.


author: BURGESS, J.

text:
    CITY OF ST. LOUIS, Plaintiff in Error, v. JOSEPH BIPPEN.
    Division Two,
    March 5, 1907.
    1. INFORMATION: In Language of Ordinance: Selling Milk. An information which charges a defendant with violating a certain ordinance, and advises him of the time when, and the place where, and the manner in which, he had violated it, and of everything necessary to enable him to prepare to defend himself against the charge, is sufficient. In this case defendant was charged with carrying, controlling and exposing for sale milk which on analysis showed less than three per cent by weight of butter fat, in violation of a certain named ordinance.
    2. SPECIAL ORDINANCE: In Conflict With General Ordinances. The Supreme Court' does not take judicial notice of the ordinances of municipalities; and a charge that the special ordinance under which defendant is being prosecuted is in conflict with unrepealed general ordinances, cannot be considered, unless the court is advised as to what unrepealed general ordinance the special ordinance conflicts with.
    3. MILK ORDINANCE: Rule of Evidence. The Milk Ordinance of St. Louis (sec. 18, Ord. 20808), does not prescribe a rule of evidence, nor is it too vague or indefinite to be enforced.
    4. -: Constitutionality: Gains of Industry: Due Process of Law. The Milk Ordinance of St. Louis, which prohibits the sale of milk unless it shows on analysis not less than three per cent by weight of butter fat, etc., is not unconstitutional as depriving a citizen of the enjoyment of the gains of his own industry, nor as depriving him of his liberty and property without due process of law.
    Error to St. Louis Court of Criminal Correction.— Hon. Hiram N. Moore, Judge.
    Reversed and remanded.

      Chas. W. Bates and Chas. P. Williams for plaintiff in error.
    This is a prosecution under Ordinance No. 20808, and the particular section involved is section 18 thereof. This is the section which was under consideration in the case of St. Louis v. Liessing, 190* Mo. 464. It is believed, after a careful examination and comparison of the record of the case at bar with the causes of: St. Louis v. Liessing, supra; St. Louis v. Grafeman Dairy Co., 190 Mo. 492, 507; St. Louis v. Schuler, 190' Mo. 524; St. Louis v. Polinsty, 190 Mo. 516; St. Louis v. Reuter, 190 Mo. 514, that every proposition raised by the motion to quash, in this case, has been settled adversely to the contentions of the defendant in error by this court.

      Wm. L. BoTmenkamp for defendant in error.
   BURGESS, J.

This is a prosecution by the city of St. Louis against the defendant for the violation of section 18 of Ordinance 20808 of said dty. The defendant was convicted before the justice of the First District Police Court of the city of St. Louis, and sentenced to pay a fine of twenty-five dollars. From this judgment defendant appealed to the St. Louis Court of Criminal Correction, where, upon motion filed by him, the complaint was quashed and the defendant discharged. Thereafter, in due time, the city sued out a writ of error, and brings this case to this court for review.

The complaint alleges that, “In the city of St. Louis and State of Missouri, on the 16th day of March, 1903, and on divers other days and times prior thereto, the said Joseph Bippen did then and there carry, control and expose for sale milk at Seventh and Park avenue, which said milk did show, on analysis, less than three per centum by weight of butter fat, the said butter fat being estimated gravimetrically by the Adams Paper Coil Process, contrary to the ordinance in such case made and provided.”

In the motion to quash, the grounds assigned are as follows:

“1. The information fails to set out facts sufficient to state a cause of action.
“2. The information does not set out facts sufficient to inform and advise the defendant fully as to the charge he is to defend against.
‘ ‘ 3. The information is based upon city ordinance No. 20808, article--, section--, which is void because it is in conflict with other unrepealed general ordinances of the city of St. Louis.
“4. The city ordinance on which the complaint is based is void because it prescribes a rule of evidence.
1 (5. The ordinance on which the complaint is based is too vague and indefinite to be enforced. -
6. The ordinance forming the basis of the complaint is unconstitutional and void, because:-
“(a) It deprives a citizen of the enjoyment of the gains of his industry, contrary to article 2, section 4, of the Constitution of Missouri, and article 14 of the amendments to the Constitution of the United States.
“ (b) It deprives persons of their property without due process of law, contrary to article 2, section 30, article 14, of the amendments to the Constitution of the United States.”

This prosecution is for the violation of section 18 of Ordinance No. 20808 of said city, and is the same section upon which the prosecution was based in the case of the City of St. Louis v. Liessing, 190 Mo. 464. The said section is as follows:

“No milk shall be sold, kept, offered or exposed for sale, stored, exchanged, transported, conveyed, carried or delivered, or with such intent as aforesaid be in the care, custody, control or possession of anyone, unless it shows on analysis not less than three per cent by weight of butter fat, eight and five-tenths of one per cent ash, of which fifty per cent shall be insoluble in hot water: Provided, however, that in contested analysis of milk condemned under this ordinance, butter fat shall be estimated gravimetrically by the Adams Paper Coil Process; total solids by evaporation, and non-fatty solids by difference between total solids and butter fat, and ash by weighing the residue after incineration of total solids at a dull red heat until all the organic matter is destroyed. Any one violating any of the provisions of this section shall be deemed guilty of a misdemeanor, and upon conviction thereof be punished by a fine of not less than twenty-five dollars nor more than one hundred dollars for each and every offense. ’ ’

The information is sufficient. It charged the defendant with violating the ordinance, in the language thereof, and advised him of the time when, the place where, and the manner in which he had violated the ordinance, and of everything that was necessary in order to enable him to prepare to defend himself against the charge preferred against him. Nothing more was necessary.

It is asserted that the ordinance is void because in conflict with other unrepealed general ordinances of the city. But we are not advised as to what unrepealed ordinances are referred to, and as we cannot take judicial notice of the ordinances of municipalities (City of St. Louis v. Roche, 128 Mo. 541, and authorities cited; St. Louis v. Liessing, supra), this point must -be ruled against the defendant.

Nor is the ordinance upon which the complaint is based subject to the objection that it prescribes a rule of evidence, or that it is too vague and indefinite to be enforced. Besides, the last proposition is covered by what has been said with reference to the first and second grounds asigned in the motion to quash.

Another ground assigned in the motion to quash is that the ordinance is unconstitutional because it deprives a citizen of the enjoyment of the gains of his industry, contrary to article 2 of section 4 of the Constitution of Missouri, and article 14 of the amendments to the Constitution of the United States. As to the first assigned ground of unconstitutionality, that question underwent full discussion in the case of St. Louis v. Liessing, supra, and in an opinion by Gantt, J., in which all the members of the court concurred, the constitutionality of the ordinance was sustained. With respect to the contention that the ordinance is unconstitutional because repugnant to section 1, article 14, of the amendments to the Constitution of the United States, in that it deprives the defendant of his liberty and property without due process of law, it is sufficient to say that this identical question was passed upon in the said Liessing case, as well as in the case of St. Louis v. Grafeman Dairy Co., 190 Mo. 492, and the constitutionality of the ordinance upheld.

Our conclusion is that the judgment should he reversed and the cause remanded. It is so ordered.

All concur.


text:
    ELIZABETH A. SMITH v. JAMES W. SMITH et al., Appellants.
    Division Two,
    March 5, 1907.
    1. PLEADING: General Allegations: Indefiniteness: Cured After Judgment. Where no objection was made in the trial court that the allegations of mistake, oversight and accident in the making of a deed to plaintiff’s husband rather than to her, were too indefinite, the defect as to the generality of the allegations was cured after judgment.
    2. -: -: Resulting Trust: Deeds. If a husband really held the title to the lands in trust for his wife, that fact can be established by evidence, if sufficient, irrespective of whether the deed contained a trust clause or not, and irrespective of whether or not the trust clause was by accident or mistake omitted therefrom.
    3. LIMITATION: Deed to Husband of Wife's Lands: Twenty-four Years. Where in friendly partition of the lands of plaintiff’s father among his children, the deed was made to her husband instead of to her, the Statute of Limitations did not begin to run against her until her husband’s death, and her suit to have a resulting trust declared and the title vested in her was not barred in twenty-four years after such deed was made.
    4. WITNESSES: Grantors in Deed of Wife’s Lands to Husband. Where plaintiff claims that in a friendly partition of her father’s lands by his children, the lands agreed upon as her share were by mistake deeded to her husband instead of to her, and she asks that the title be vested in her, and the defendants assert that the husband bought and paid for the lands, the brother and sister of plaintiff who signed the deed to the husband, now deceased, are not competent witnesses in her behalf. Under the statute they are “the other party” to the contract or cause of action in suit.
    5. -: -: Resulting Trust: Insufficient Proof. Where the proof that certain lands were inherited by plaintiff and her brothers and sisters, that the land in suit was set off to her under a friendly partition and agreement with them, and that the deed to that land, made thirty-seven years before her husband’s death, was by mistake made to him though the land belonged to her, consists of testimony of two witnesses, one of whom testified that in a conversation with the husband six or seven years before the trial he said that the lands belonged to his wife, and the other that five years before the trial the husband asked him if he knew anything of his wife’s land, describing the land in suit, the testimony is not of that strong, clear and unequivocal kind that will authorize the court to declare that she has a resulting trust in the land.
    6. HUSBAND AND WIFE: Proceeds of Wife’s Property. Prior to the Married Woman’s Act, lands bought by the husband with proceeds arising from his wife’s property which she had inherited and which he had reduced to his possession, were his absolute property, and remained such after the enactment of the Married Woman’s Act.
    Appeal from Mississippi Circuit Court. — Hon. Henry G. Riley, Judge.
    Reversed.

      Russell & Deal for appellants.
    (1) Plaintiff’s petition does not state a cause of action: First, for the reason that it states no equity, the allegations of the mistake, accident and oversight being too indefinite. Bliss, Code Pleading (2 Ed.), sees. 211, 212. Second, for the reason that plaintiff’s right of action, if any ever existed, has long since been barred by the Statute of Limitations; the petition as well as the evidence shows that the deed was made and delivered in 1866, nearly thirty-eight years before this suit was filed. Burdett v. May, 100 Mo. 13. Even if the plaintiff was a married woman, twenty-four years constitutes a bar to her right to sue. R. S'. 1899, sec. 4265; Reed v. Painter, 145 Mo. 341. As she had no children, Mr. Smith never had a right of possession as tenant by curtesy initiate. (2) The testimony of Mrs. Goddard and J. H. Moore was incompetent and inadmissible because they were both parties grantor to the deed sought to be reformed, made by them to James Smith, who is now dead. They cannot now contradict the deed they made forty years ago in 1866 and take from James Smith’s heirs the property they conveyed him then, he not being here to contradict their statements. Messemer v. McCray, 113 Mo. 382; Bank v. Slattery, 166 Mo. 620; State ex rel. v. Thompson, 81 Mo. App. 549; Patton v. Fox, 169 Mo. 97; Edwards v. Warner, 84 Mo. App. 200. (3) Courts of equity view with disfavor suits brought long after transactions litigated have occurred and after death has sealed the lips of those familiar with occurrences. State ex rel. v. West, 68 Mo. 229; Burdett v. May, 100 Mo. 18. (4) If the testimony of Moore and Groddard is excluded, plaintiff has no proof at all except witnesses Lee and Vowels to loose remarks in ordinary conversations, to which equity pays little attention. Cornet v. Bertelmann, 61 Mo. 118; Forester v. Scoville, 51 Mo. 268. (5) The deed itself is to be taken in our behalf with all the presumptions it carries with it of its correctness, and before the court should decree a change of the deed which is the solemn act of the parties, the evidence must be plain and conclusive, both to- establish a mistake and a trust. Bunse v. Agee, 47 Mo. 270; Modrell v. Riddle, 82 Mo. 31. (6) Under the law in force when plaintiff was married and when her father died and when the deed in controversy was made, her personal property and the proceeds of her lands became the absolute property of her husband. Croft v. Bolton, 31 Mo. 355; Hart v. Leet, 104 Mo. 316; Leet v. Bank, 141 Mo. 574; Bank v. Fry, 168 Mo. 492. (7) If the property which Mrs. Smith inherited from her father’s estate was reduced to Mr. Smith’s possession and the proceeds used in buying any or all of the land, such shares so bought under the law then in force became the absolute property of Mr. Smith. Rogers v. Bank, 69 Mo. 562; Tillman v. Tillman, 50 Mo. 40; Kidwell v. Kirkpatrick, 70 Mo. 214. So that the interests which were conveyed to James Smith by the administrator of Ben J. Moore and his widow unquestionably belong to the estate of said Smith. (8) Plaintiff has not made out such a case as will warrant the court in reforming this deed, because the rule is that to prove a trust or reform a deed the testimony must be so clear, strong and unequivocal as to banish any reasonable doubt from the mind of the chancellor respecting the existence of such trust. Burdett v. May, 100 Mo. 16; Forester v. Scoville, 51 Mo. 268. ■

      Boone & Lee, with O’Brycm, for defendant.
    (1) That the petition states a cause of action is too plain to discuss. The statement that by accident or mistake the trust clause was omitted, is a statement of fact, not a conclusion of law. Mistake of law or fact on the part of the maker of an instrument will be corrected by a court of equity. Ellsworth v. Quade, 28 Mo. App. 421; 3 Wait, Actions and Defenses, p. 164; Leitensdorfer v. Delphy, 15 Mo. 160. In the case at bar, the parties all thought that they were conveying the land in trust; the writer of the deed himself thought so, and testified to that effect. (2) No cause of action accrued in this ease until after the death of Jas. Smith in 1902. Under the law he had the exclusive right to the possession of his wife’s real estate. He never asserted title to it under the deed in question. He always considered it as her property and neither he nor his wife knew any better during his life, and there was no assault on her title until an adverse claim was made by the heirs of her husband. This suit was brought to the April term, 1903; therefore, respondent is not barred by the statute of limitation, neither does the twenty-four-year Statute of Limitation bar her. Bradley v. Railroad, 91 Mo. 497; Graham v. Ketchum, 192 Mo. 20; Dyer v. Witler, 89 Mo. 84; Boynton v. Miller, 144 Mo. 681. (3) Section 4652, Revised Statutes 1899, removes the common law disability of parties in interest to testify, and excepts when one of the parties is dead, insane, etc. Neither Moore nor Goddard are parties or in any manner interested in the results of this law suit; nor were they the agents of Mrs. Smith. The question at issue here is not the contract between them and James Smith, but the implied contract between Mrs. Smith and James, arising from the fact that he wrongfully, ignorantly or by mistake had the deed made to himself, and not to her; or failed to have a trust clause inserted in the deed. J. H. Moore, who wrote the deed, was as much his agent as he was of Mrs. Smith. Ess v. Griffith, 139 Mo. 329. The admissions of the party holding legal title are admissible to establish a resulting trust. Rice v. Shipley, 159 Mo. 403; Price v. Kane, 112 Mo. 412. The Supreme Court will not set aside the finding of the chancellor unless manifestly against the weight of evidence. Hartly v. Hartly, 143 Mo. 216; Roberts v. Stone, 91 Mo. App. 425. The facts in this ease warranted the finding and judgment of the trial court.
   BURGESS, J.

-In 1857 Charles Moore died intestate, owning the land involved in this litigation • and other land and personal property. He left surviving him seven children, namely, Eliza J. Goddard, Elizabeth A. Smith, this plaintiff, Nancy Parrot and Susan A. Swank, daughters, and Charles C. Moore, Joseph H. Moore and Benjamin J. Moore, sons, his only heirs-at-law. In 1864 Benj. J. Moore died, and Joseph C. Moore was duly appointed his administrator, and qualified as such.

Prior to the 6th day of April, 1866, the plaintiff, Elizabeth A. Smith, was united in marriage to James Smith, and remained his wife until his death in 1902. Said James Smith was the father of the defendants, James W. Smith, Silas S. Smith and Elizabeth Bridwell, and the grandfather of Henry E. Sherman, who is the only heir of Sarah, deceased, a daughter of James Smith, also the grandfather of Ida Ross, wife of Emil E. Ross, and Mattie Deal, wife of E.. J. Deal, the said Ida Ross and Mattie Deal being the only surviving heirs of Ellen, a daughter of James Smith.

The petition alleges:

“That on the 6th of April, 1866, the then surviving children of Charles Moore, tenants in common, owning the real estate left by said Charles Moore, by mutual consent and agreement, made division and partition of the lands so derived and so owned as tenants in common, setting apart to each lands of the estimated value of fourteen hundred dollars; that, thereunder, there was set apart to Elizabeth Smith the following parcels of land in Mississippi county, Missouri, namely : The southeast quarter of the southwest quarter of section two and the north half of the northwest quarter of section eleven, township twenty-six, range sixteen, also the southwest quarter of section fifteen, township 26, range 17, in Mississippi county, Missouri, and there was also set aside to each of the other heirs and children, lands of an equal value and, on said dates, deeds were executed, signed by all the heirs, as grantors to each of said heirs as grantees, giving effect to, carrying out and conveying the lands as per agreement, and on said 6th April, 1866, to carry out said agreement of partition, Joseph H. Moore and wife, Anne; Nancy M. Parrot and husband, Beverly; Charles C. Moore and wife, Joan; Susan A. Swank and husband, A.Y., and Ellen J. Goddard, by their deed of that date, undertook to convey to James Smith the above-described lands in trust for his wife Elizabeth, to whom, they then belonged, but by mistake, accident and oversight the clause necessary to create the trust was unintentionally omitted in said deed, though said deed was received and accepted by said James Smith with such understanding and intent. That while the sum of fourteen hundred dollars is recited in said deed as a consideration for said conveyance of land, yet in truth and fact, no money was passed, given or received therefor, but the sole consideration upon which said conveyance of lands was based was the agreement of division and the conveyance of other lands of like and equal value in which the said Elizabeth had a one-seventh interest, and that said lands and said conveyance were accepted by said James Smith as a trustee for the use and benefit of his wife, Elizabeth, who in after life-so treated it. She further states that during the life of said Smith, he and the plaintiff sold and conveyed the lands in section 2 and section 11, and that the lands in section 15 is all that is left of said trust property.
“She further states that in 1868, Joseph C. Moore, administrator of B. J. Moore, conveyed the one-severith interest of said land held as tenant in common by B. J. Moore to Smith; that the consideration paid therefor was paid out of moneys arising from the sale of plaintiff’s land and that said Smith took said conveyance in trust for his wife and that, through mistake and accident, a trust clause in said deed was omitted and that after that, on 28th April, 1871, Althea, the widow of B. J. Moore, then the wife of Fields, conveyed her dower right, derived from B. J. Moore, to said Smith; but he also took said conveyance in trust for his said wife and through mistake and accident the trust clause was omitted in said deed but that said Smith always regarded and treated the property as hers; that said land is of right and in equity the plaintiff’s property.
“That said Smith died without will and that under the laws a large real estate owned by him in his own right descended to his heirs subject only to the widow’s dower. That Henry E. Sherman and Ida Ross and Emil E. Ross are non-residents of this State, so that the ordinary process of law cannot be served on them; that Silas S. Smith is a resident of St. Francois county, Missouri; the other defendants are residents of this county.
“Wherefore, she prays that the title so acquired by James Smith to the southwest quarter of section 15, township 26, range 17, in Mississippi county, Missouri, under the several deeds mentioned, be decreed to be held in trust for the plaintiff and that the title thereto be divested out of defendants and invested in the plaintiff by the proper orders and decrees of this court, and for general equitable relief and for costs.”

The answer of the defendants is as follows:

“Now come the defendants and for their answer herein they admit that in the year 1857, Charles Moore died in Scott county, -Missouri, intestate and that he left lands situate in Scott and Mississippi counties, which under the laws of descents and distribution descended and became vested in his children and heirs, as tenants in common; and that the children and heirs to whom the land descended were Eliza J. Goddard, Elizabeth A. Smith, Nancy Parrot, Charles C. Moore, Susan A. Swank, Joseph H. Moore and Benjamin J. Moore, and that on April 6,1866, and long prior thereto, Elizabeth Smith was married to James Smith and remained his wife until 190-2, at which time he died; that he is the father of the defendants, James W. Smith, Silas S. Smith, Elizabeth Bridwell, and the grandfather of Henry E. Sherman, Ida Ross and Mattie Deal, and that said J ames Smith died intestate and that his real estate descended to his said heirs subject only to the widow’s dower.
“Defendants further answer deny each and every allegation in the plaintiff’s petition contained, except those above expressly admitted and ask judgment for costs.”

The court found the issues for the plaintiff, and rendered the following judgment:

“It is therefore ordered, considered, adjudged and decreed that the land, the southwest quarter of section 15, township 26, range 17, in Mississippi county, Missouri, acquired by said Smith through the several deeds above mentioned, viz.: the deed of April 6,1866, from Joseph H. Moore et al., to Smith, the deed of 1868 from Ben J. Moore by administrator to James Smith, the deed of April 28, 1871, from. Althea Fields to James Smith, be and the same is deemed to have been taken and held in trust for Elizabeth Smith and that all right, title, interest and estate therein accruing to said heirs by virtue of said deeds be and the same is divested out of them severally and jointly and invested in the plaintiff, Elizabeth Smith.”

In due time defendants filed motions for new trial and in arrest of judgment, which were overruled, and they appeal.

The facts developed by the evidence are about as follows:

Charles Moore, in 1857, died intestate, owning the land in dispute as well as other lands and personal property which descended to his seven children and heirs named in the petition, one of whom, the plaintiff, Elizabeth Smith, was the wife of James Smith from 1849 to his death in 1902.

In 1866 five of Charles Moore’s children conveyed their five-sevenths interest in the land in suit to J.ames Smith by ordinary deed of conveyance for a stated consideration of $1,467, and about the same time said heirs conveyed to Mrs. Parrot, one of the heirs, eighty acres of the land for a stated consideration of $386, and to the wife of Joseph H. Moore, he being one of said heirs, other land for a stated consideration of $368. The plaintiff, wife of James Smith, did not join in a conveyance to him, and she still owns her one-seventh interest in said land. The one-seventh interest of Benj. J. Moore, deceased, was conveyed by his administrator, several years later, to said James Smith for $189.20, and his widow also conveyed her dower interest to said James Smith for seventy-five dollars.

James Smith died intestate in 1902, seized of six-sevenths interest in said land, and left the defendants as his sole heirs, they being the descendants of his first wife, not of his widow, the plaintiff in this suit, who had no issue.

After the death of James Smith this suit was filed by the plaintiff to divest title out of the defendants and invest same in her, on the theory that the heirs of Charles Moore agreed on an equal division of lands, that each got land of equal value, and that the deed was made to James Smith in trust for his wife, but by mistake, accident and oversight a trust clause was unintentionally omitted from said deed.

But the defendants contend that the land was sold to James Smith for $1,467 by the five heirs, and paid for by him, and that, later, the Benj. J. Moore interest was likewise bought and paid for by the said James Smith.

J. H. Vowels testified that in a conversation with James Smith, now deceased, he heard Smith state that the land belonged to his wife. "Walter Lee also testified that five years ago- Mr. Smith in his lifetime asked him about the land on Rush Ridge, saying: “Did I know anything about Elizabeth’s land.” Eliza J. Goddard, a sister of plaintiff and a party to the deed in controversy made to James Smith, deceased, stated that she was eighty years of age and that the lands of her father’s estate were divided after the war; that her sister Elizabeth A. Smith got the Rush Ridge place; no money consideration passed; each one received land for his or her part. “My sister’s land was deeded to Mr. Smith in trust for her; that was my understanding; my father’s land was divided equally as well as we could; no money was paid over; Susan Swank, my sister, got no land, but, she got other property. It might have been money.” Joseph H. Moore, a brother of plaintiff, testified that he was 67 years old. “My father’s lands were divided by the heirs in 1866; we didn’t take much consideration of the value of the land; it was my understanding that the sole consideration was the division of the land; I wrote the Smith deed and asked to whom it should be made; she said it made no difference on her part. Mr. Smith said, ‘Well, just make it to me; everybody knows it comes through Elizabeth’s father to her.’ He said he. would hold the property as her land. Benj. J. Moore was dead, and no land was set off for him. I don’t think Susan Swank got any land. She got a lot of property amounting to a good deal more than her interest in these tracts of land. She had already got property enough to equalize the property the others got in land. She joined in those deeds, because she had received an equivalent. Mr. Smith told me it took all the money he got out of Elizabeth’s interest to pay for the interest of Benj. Moore and his widow in said land. I reckon it was backwardness on my part that I did not e'xpress in the deed that the land was to be held by him for her. I think Mrs. Smith could have heard the conversation about his telling me. In regard to the consideration being uneven amounts in the different deeds I might suggest these people got more slaves or something than the others did; it was evened up in the personal property; it might have been that way. Mrs. Parrot may have got more slaves than Mrs. Smith’s folks. Mrs. Swank did not get any land at all, but a great deal more personal property than any of the rest.”

Elizabeth A. Smith, the plaintiff, testified: “I knew it all the time that I owned the land in controversy.”

Elizabeth Bridwell, on behalf of the defense, testified: “I never in the world heard the plaintiff say it was her property and never heard my father say it was hers. I have heard my father say what it cost him; he said he bought it at the division of the Charles Moore estate.”

J ames W. Smith testified: “I have talked with my father about this land, and never heard him claim or state that it was his wife’s property. I talked with him twice in his wife’s presence, and she did not say it was her property. She never did, prior to my father’s death, say anything to me about being the owner of the land; in 1866 I was living on the farm with father. I heard father say any person that would pay him back the money he paid out on the land, with interest, could have the land.”

E. J. Deal testified: “I spoke to James Smith twice about buying this land; his wife was present both times. Mr. Smith said he had owned it a long time and could not get what it cost him. Nothing was said about the land going to his wife. Mrs. Smith made no claim to ownership.”

The settlements of Charles Moore estate show that the personal property amounted to about $3,200, and that James Smith received $216.10, A. Y. Swank, $96.-55, and Beverly Parrot, $29.15.

The petition is assailed upon the ground that the allegations of mistake, accident and oversight are too indefinite. But no objection was taken to it in the court below, and the defect as to the generality of the allegations was cured after judgment. [See. 672, R. S. 1899.] It is not like a case where the petition fails to state a cause of action, for then the defect is not cured by verdict, and objection may be raised in the Supreme Court for the first time.

But the allegations in the petition to the effect that the grantors in the deeds to the lands in question undertook to convey to James Smith said lands “in trust for his wife Elizabeth, to whom they then belonged, but by mistake, accident and oversight, the clause necessary to create the trust was unintentionally omitted in said deeds, though said deeds were received and accepted by James Smith with such understanding and intent,” seem to have been made by way of inducement, and as preliminary to the allegations of fact constituting the trust, because the prayer of the petition is that “the title acquired by James Smith to the land, under the several deeds mentioned, be decreed to be held in trust for the plaintiff, and that the title thereto be divested out of defendants and invested in the plaintiff;” and the judgment is in accordance with the prayer to the petition. If James Smith really held the title to the land in trust for his wife, it could be established by evidence, irrespective of the deeds, if sufficient for that purpose.

A point is made with respect to plaintiff’s right of action, which, defendants contend, accrued on the 23rd day of March, 1866, the date of the execution of the deed by five of the heirs of Charles Moore to James Smith, or more than thirty-seven years' before the institution of this suit, and is, therefore, barred by the twenty-four-year Statute of Limitations. But at the time James Smith acquired the title to the land, March, 1866, he had the right to the exclusive possession of his wife’s land. Prior to our statutes restricting the common law rights of the husband in the lands of the wife, the seizin and possession of such lands, with the right of action for their possession, were transferred by the marriage to the husband. Therefore, the right of action for the possession of the land in question being in plaintiff’s husband, he did not hold adversely to her (Boynton v. Miller, 144 Mo. 681), and the twenty-four-year Statute of Limitations (sec. 4265, R. S. 1899) did not commence to run against her until his death in 1902. [Dyer v. Wittler, 89 Mo. 84; Bradley v. Railroad, 91 Mo. 497; Boynton v. Miller, supra; Graham v. Ketchum, 192 Mo. 20.]

Upon the trial, J. H. Moore testified as a witness for plaintiff, and the deposition of Eliza J. Goddard was read in plaintiff’s behalf, although said evidence was objected to at the time by defendants upon the ground that J. H. Moore and Eliza J. Goddard were parties grantors to the deed made to James Smith on the 23rd day of March, 1866, and sought to be reformed. Section 4652, Revised Statutes 1899', provides that no person shall be disqualified as a witness in any civil suit, and then adds: “Provided, that in actions where one of the original parties to the contract or cause of action in issue and on trial is dead, or is shown to the court to be insane, the other party to such contract or cause of action shall not be admitted to testify either in his own favor or in favor of any party to the action claiming under him,” etc. One of the deeds by which it is alleged the grantors therein undertook to convey to James Smith the land therein mentioned in trust for his wife, Elizabeth Smith, but from which, by mistake, accident and oversight, the clause necessary to create the trust was omitted, and which is sought to be corrected, was executed by five of the children and heirs of Charles Moore; and the other deed, sought to be corrected in the same manner, was by the administrator of Benj. J. Moore, another heir. This suit is against the children and grandchildren of James Smith and his first wife. James Smith, the grantee in said deeds, being dead at the time of the trial, and the suit being for the correction of said deeds, the other parties to the contract or cause of action are incompetent under the statute (sec. 4652, R. S. 1899) to testify in favor of any party to the action claiming under him, and as plaintiff claims under said deeds of James Smith, and as J. H. Moore and Eliza J. Goddard were parties to one of said deeds, they were incompetent as witnesses for any purpose whatever. [Angell v. Hester, 64 Mo. 142; Ring v. Jamison, 66 Mo. 424; Wood v. Matthews, 73 Mo. 477; Chapman v. Dougherty, 87 Mo. 617; Leeper v. Taylor, 111 Mo. 312; Teats v. Flanders, 118 Mo. 660; Curd v. Brown, 148 Mo. 82; Miller v. Slupsky, 158 Mo. 643; Patton v. Fox, 169 Mo. 97.]

Without the testimony of these two witnesses the question with' which we are confronted is as to whether the evidence was of a character such as to establish a resulting trust in favor of the plaintiff. “In order to prove such a trust it must be established by testimony so clear, strong and unequivocal as to banish every reasonable doubt from the mind of the chancellor respecting the existence of such trust. This is the substance and effect of the language employed by the authorities, and by this court in numerous instances.” [Burdett v. May, 100 Mo. l. c. 16; Johnson v. Quarles, 46 Mo. 423; Forrester v. Scoville, 51 Mo. 268; Ringo v. Richardson, 53 Mo. 385; Kennedy v. Kennedy, 57 Mo. 73; Gillespie v. Stone, 70 Mo. 505; Philpot v. Penn, 91 Mo. 38; Berry v. Hartzell, 91 Mo. 132.]

The testimony tending to establish the trust is entirely made up of verbal admissions made by the husband of plaintiff upon two different occasions from four to seven years before the trial. Upon this subject Mr. Greenleaf says: The evidence consisting, as it does, in the mere repetition of oral statements, is subject to much imperfection and mistake; the party himself either being misinformed, or not having clearly expressed his own meaning, or the witness having misunderstood him. It frequently happens, also, that the witness, by unintentionally altering a few of the expressions really used, gives an effect to the statement completely at variance with what the party actually did say. ” The only testimony to be considered as tending to establish the trust was that of witnesses J. H. Vowels and Walter Lee. Vowels testified that in a conversation had with James Smith about six or seven years before the trial, Smith said that the land belonged to his wife. Walter Lee testified that five years before the trial Mr. Smith asked him “about the land on Rush Ridge,” and if he “knew anything about Elizabeth’s land,” meaning his wife, the plaintiff. The evidence on the part of the defendants was of a negative character. Plaintiff insists that these admissions by James Smith were sufficient to show that he held the title to the land in question in trust for his wife, the plaintiff. Price v. Kane, 112 Mo. 412, is relied upon as sustaining this contention; but in that case the wife bought the land in controversy with her husband’s money, taking the title in her own name, but declared at the time that it was pur-chased for her husband and that she held the title in trust for him. The testimony in that case was much stronger than in the case at bar, and clearly established the trust. Rice v. Shipley, 159 Mo. 493, is also relied upon by plaintiff. But that case is distinguishable from this, in that the money which bought the land in this State was the separate property of a, married woman under the laws of another State at the time she came to this State, and it was correctly held that, as it was clearly shown that the said money was the wife’s separate property under the laws of another State, and that it came into her husband’s possession by her consent for the purpose of buying a home for them and their children, he took the title in trust for her, and her heirs after her death. In the case at bar the wife had no' separate property. Besides, there was no agreement between plaintiff and her husband by which he was to purchase the land and hold it in trust for her.

The title to the land remained in plaintiff’s husband for thirty-seven years before his death, and, according to the evidence, during all that time he was never heard to say, except upon two occasions, from six to seven years before his death, that the land belonged to his wife, or that he held it in trust for her. When we take into consideration the fact that the repetition of verbal statements is subject to much imperfection and mistake, and the length of time between the acquisition of the title to the land by James Smith and the date of his death, during all of which time, except upon two occasions, it is not shown that he spoke of the land as belonging to plaintiff or did anything which tended to show that he treated it or regarded it as her land, we must hold that the claim of plaintiff has not been established as required by the authorities quoted.'

With respect to the deed from Joseph O. Moore, administrator of the estate of Benjamin J. Moore, deceased, conveying one-seventh interest in the land in controversy to James Smith, there was no evidence whatever tending to show that Smith took said conveyance in trust for his wife, the plaintiff, or that, through mistake or accident, a trust clause in said deed was omitted.

Moreover, if the property which plaintiff inherited from her father’s estate was reduced to her husband’s possession, and the proceeds arising therefrom used in buying any or all of the land in question, the interests so bought became the absolute poperty of her husband under the law in force at the time. [Tillman v. Tillman, 50 Mo. 40; Rodgers v. Bank of Pike County, 69 Mo. 560; Kidwell v. Kirkpatrick, 70 Mo. 214.]

It follows that the interest in the land which was conveyed to James Smith by the. administrator of Benj. J. Moore became the property of- Smith, free from any claim of right, equitable or otherwise, in the plaintiff.

Our conclusion is that the judgment should be reversed. It is so ordered.

All concur.


author: POX, P. J.

text:
    THE STATE v. P. E. BEVERLY, Appellant.
    Division Two,
    March 5, 1907.
    1. INFORMATION: Concubinage. An information substantially in the language of the statute, charging the defendant with taking a certain female under the age of eighteen years from her father for the purpose of concubinage, verified by affidavit and in harmony with the precedents approved by the Supreme Court, is sufficient.
    2. INSTRUCTIONS: All Law of Case: No Exception. Unless the appellant, convicted of a felony, at the time excepted to the failure of the court to instruct the jury on all the law applicable to the case and saved his exceptions in the bill of exceptions, he cannot on appeal complain of the court’s failure in that regard.
    3. CONCUBINAGE: Essentials of Crime: Actual Sexual Intercourse. An essential of the statutory offense of taking away a female under eighteen years of age from her father, who had legal charge of her, for the purpose of concubinage, is the intent with which she is taken; and that intent may be gathered from the facts in evidence. When the taking is shown to' be for the purpose of concubinage, the offense is complete. It is not essential that the taking away should have been accompanied by sexual intercourse. Nor is it essential that she should be permanently kept away from the paternal home, or that there should be any intention to keep her.
    4. INTENT: How Shown? The intent is a mere invisible resolve of the human mind, and is seldom susceptible of positive and direct proof. The evidence shows that the defendant, under the pretext that his wife wanted her to work in her home and would give her a dollar a week for her services, clandestinely got a sixteen-year-old girl away from her home and from her parents, took her behind him on a horse, took her into a country church and, under the pretext that it was raining and that the creeks were up, remained there all night, and there tried to induce her to have sexual intercourse with him, the fact being that the creeks had already been crossed and they did not interfere with his reaching his own home, and the fact further being that at numerous residences near the church he could have obtained proper shelter for the girl and himself. The next morning before daylight he started on his way home, and on the way again solicited the girl to dismount and have sexual intercourse with him. Held, that there is substantial evidence to sustain, the verdict that defendant took the girl from her parents for the purpose of concubinage, and a demurrer thereto was properly overruled.
    5. VERDICT: Form: Misspelt Words: Meaning. The verdict, signed by the foreman, read: “We the Jury Fine the defendant Guilty as charge in the information and asses Punishment Two years in the Pentenure.” Held, to be substantially in good form with the exception of the spelling, and as the meaning is manifest and no one could be misled in interpreting it, it is sufficient to support the judgment.
    Appeal from Oregon Circuit Court. — Hon. Wm. N. Evans, Judge.
    Affirmed.

      A. H. Livingston for appellant.
    (1) Concubinage is the cohabiting of a man and woman who are not legally married, and the gravamen of the offense of taking away a female from a person having legal charge of her for the purpose of concubinage, is the intent with which she is taken, and this intent may be, of course, gathered from all the facts and circumstances in evidence. Under the statute and the adjudications of this court this is a crime consisting of intent wholly. If the intent is shown to exist at the time of taking, the offense is complete, regardless of the subsequent acts of the parties toward each other., Upon the contrary, if the intent is lacking at the time the female is taken away, no subsequent acts of the party taking can make the offense, however lewd or improper they may appear'. State v. Adams, 179 Mo. 334; State v. Gribson, 111 Mo. 95. (2) Under the law there is a total failure of proof in this case. There is not a fact or a circumstance that tends to prove that at the time the defendant took the prosecuting witness away there was any evil, impure or improper intent whatever. There is no evidence that the reprehensible conduct of the defendant at the church house that night was ever thought of before; but it shows, upon the contrary, that had the rain storm not come they would have gone on home without any improper words or conduct upon the part of the defendant. Next morning defendant took prosecuting witness to his home, she went to work for his wife and continued to do so up to the time that her father went and took her away. The fact that the girl did not want to return with her father because she thought he would whip her — a young woman of sixteen years of age — shows the dread and terror under which she lived at her home. Under the case made by the State every element of the crime charged was not only not established, but disproven. That the court should have sustained defendant’s demurrer to the testimony we think will hardly be disputed, in view of the repeated adjudications of this court in cases of the same class. State v. Roebeck, 158 Mo. 130; State v. Wilkinson, 121 Mo. 485; State v. Gibson, 111 Mo. 95. (3) The verdict rendered in this case is “without form and void,” and m> judgment can rest thereon.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State:
    (1) In his motion for a new trial, defendant, for the first time, attempts to save his exceptions to the failure of the court to instruct on all the law applicable. As he failed to save his exceptions at the time of the alleged failure, defendant cannot now complain of such failure. State v. Cantlin, 118 Mo. Ill; State v. Urspruch, 190' Mo. 50. (2) The way and manner in which defendant met prosecutrix and clandestinely got her away from her home and from her parents were circumstances to' consider in determining what was his intention; and the same may also be said of defendant’s statement to Mr. Hoag and to Miss Hoag as to what he intended to do with prosecutrix. State v. Neasby, 188 Mo. 472; Henderson v. People, 124 111. 614; State v. Bobbst, 131 Mo. 338; Slocum v. People, 90 111. 276; Bishop on Stat. Crimes, 637. It was not necessary, in a prosecution of this character, that the prosecutrix should be corroborated. State v. Stone, 106 Mo. 7. "When all of the evidence is considered, it will readily be seen that there was sufficient to warrant the conviction of the defendant; and that the same fully comes up to the requirement in this kind of a case. State v. Richardson, 117 Mo. 586; State v. Bussey, 58 Kan. 679. The rule of law in this State, as often stated, is that where there is substantial evidence tending to support the verdict of guilty, this court will not interfere, but will defer to the finding of the jury and the trial court. State v. Smith, 190 Mo. 706; State v. Payne, 194 Mo. 442; State v. Groves, 194 Mo. 452; State v. Williams, 186 Mo. 128; State v. Williams, 149 Mo. 496; State v. Swisher, 186 Mo. 8.
   POX, P. J.

This cause is here upon appeal from a judgment in the circuit court of Oregon county, convicting the defendant for taking one Emma Blankenship, a female under the age of eighteen-years, from her father,'J. M. Blankenship, for the purpose of concubinage. On the 8th of March, 1905', the prosecuting attorney filed an information duly verified, charging the defendant with the offense above indicated.

The act was alleged to have been committed on the 7th of March, 1905, in Oregon county, Missouri. The State’s evidence tended to prove that prosecutrix was the daughter of J. M. Blankenship and lived with her father and mother in Oak Grove township, in Oregon county. That in December, 1904, defendant asked Mr. Blankenship to let prosecutrix go and live with defendant’s family, but Mr. Blankenship declined, saying that his wife’s health was such as to require the daughter to be at home. About one week before the commission of the alleged crime, the defendant visited Mr. Blankenship’s home, talked to prosecutrix and remained there all night. On this occasion the father heard defendant ask prosecutrix if she would go and stay with him, hut prosecutrix said she could not. On the afternoon of the day the crime is charged to have been committed, the defendant was again at the home of the Blankenships and shortly after defendant left prosecutrix was missed by her father who hunted for her until 1 o’clock that night. On the 11th of March they found the prosecutrix over at defendant’s home living with defendant and his wife, both of whom objected to her leaving them. The State’s evidence also shows that prosecutrix was only sixteen years of age at this time and neither of her parents consented to her going with defendant. Prosecutrix testified that she always, lived with her father prior to the time she went home with the defendant; that defendant had made arrangements with her to go home with him; that he came to her1 father’s on the afternoon of March 7, 1905; that she got on defendant’s horse and rode off behind him. She further testified that none of her family knew she was going and that she and defendant rode to the New Salem church in, the country, where they went in and stayed all night; that the defendant gave as' his reason for stopping at the church that it was raining and that the water was up and it was about dark. This church, however, was shown to have been situated at a place beyond the creek and after they had crossed the creek. It was also shown that defendant was drinking that afternoon and tried to get the prosecutrix to drink some whiskey, but she declined. In the church where the defendant took prosecutrix to stay all night, the defendant made a pallet on the floor near the stove, took prosecutrix in his arm, and endeavored to have sexual intercourse with her, but there was no penetration. The next morning the defendant and prosecutrix left the church before daylight and rode on to defendant’s home. On the road defendant told prosecutrix that she must not do the way she did that night, that she was not the kind of a girl he thought she was, and that she was missing half her life. Defendant also tried to persuade prosecutrix to get down off the horse and have sexual intercourse' with him on the road, but she declined. ' Prosecutrix further testified that defendant’s wife had agreed to pay her one dollar a week to come over to her home and work for her. The defendant gave a letter to Miss Leona Hoag and asked her to deliver it to prosecutrix, but the letter was given to someone else. This was a short time before the commission of the alleged crime. To James Hoag the defendant said that he had been to see the parents of prosecutrix, and that they would not let prosecutrix come out to the gate to talk to him and did not treat him right. He further said: “The girl is going to leave; I will see that she does, and will furnish her the money to send her to any old place.” The State’s evidence further tended to show that there were several families residing around and in sight of the New Salem church that defendant and prosecutrix spent the night in.

The defendant testified that he had nothing to do with arranging for prosecutrix to come to his house; that his wife attended to that matter. That he went for prosecutrix at his wife’s request, and took her home with him on his horse. He said that on account of the hard rain he concluded to stop at the New Salem church and wait until the rain was over. That there had been a funeral there that day and there was a fire in the stove, so they went in and waited; that it kept on raining and got very dark so he concluded it was best to remain there all night. He admitted that he made a pallet down by the side of the stove and invited prosecutrix to come over and share his bed, and she came. He also admitted having his arm around prosecutrix, but denied that there was any improper conduct between them. He further stated that prosecutrix was going to work for Ms wife for one dollar a week; and lie also denied making the statements testified to by State’s witnesses, James Hoag and Miss Leona Hoag. Defendant’s wife testified that she had written to' prosecutrix to come and stay with her and agreed to pay her one dollar a week for her work; that she sent defendant to bring prosecutrix home and that prosecutrix remained at her home six days; during a part of the time defendant was away from home.

This is a sufficient statement of the main facts developed at the trial in order to determine the legal propositions disclosed by the record. At the close of the evidence the court fully and clearly instructed the jury upon every phase of the case to wMch the testimony was applicable. As learned counsel for appellant in his brief does not challenge the correctness of any of the instructions, we deem it therefore unnecessary to reproduce them here. The cause was submitted to the jury upon the evidence and the instructions of the court and they returned the following verdict:

“We the Jury Pine the defendant guilty as charge in the information and asses punnishment Two years in the Pentenure.
“H. O. Mauldin, foreman.”

Timely motions for new trial and in arrest of judgment were duly filed and by the court overruled. Sentence and judgment were rendered in accordance with the verdict and from this judgment the defendant has appealed to this court and the record is now before us for consideration.

Opinion.

Upon the record before us the appellant makes the following assignments of error:

1st. The court erred in not sustaining appellant’s demurrer to the evidence at the dose of the State’s case.

2nd. The court erred in overruling appellant’s motion for a new trial.

3rd. The court erred in overruling appellant’s motion in arrest of judgment.

I.

The information filed in this cause is predicated upon section 1842, Revised- Statutes 1899. It substantially charges the offense as defined by the statute, was duly verified by the prosecuting attorney, and is in harmony with the approved precedents by this court. [State v. Johnson, 115 Mo. l. c. 486; State v. Jones, 191 Mo. l. c. 662.]

n.

Appellant in his motion for a new trial complains of the failure of the court to' instruct the jury on all the law applicable to the case, but an examination of the bill of exceptions discloses that appellant failed to save his exceptions at the time of the alleged failure; therefore that point is not preserved for review in this court.

in.

The principal complaint of appellant, as indicated by the brief, is that the evidence was insufficient to support the verdict of the jury and that the court erred in refusing to give the instruction in the nature of a demurrer to the evidence, directing the jury under the evidence and pleadings in the cause to acquit the defendant. The law applicable to cases of this character has been very clearly and repeatedly stated in numerous decisions of this court.

“The gravamen of the offense with which the defendant is charged, the taking away of a female under the age of eighteen years from her father, who had legal charge of her person, for the purpose of concubinage, is the intent with which she is taken, and that must be gathered from the facts in evidence. When the taking is shown to be for the purpose of concubinage, the offense is complete.” [State v. Neasby, 188 Mo. 472; Henderson v. People, 124 Ill. 614.] In State v. Bobbst, 131 Mo. l. c. 338, it was expressly ruled by this court that it was not necessary that the taking away should-have been accompanied by sexual intercourse. The offense is complete when the female is taken away for that purpose. And it was said by the Supreme Court of Illinois in Slocum v. People, 90 Ill. l. c. 276, that it was not essential to constitute this offense that the girl should be kept permanently away from the parental home, or-that there should be any intention to keep her.

We have indicated in the statement of this cause the substance of the evidence introduced by the State and have read in detail all of the evidence introduced in this cause as disclosed by the record, and we are unable to- give our assent to the contention of appellant that there is no substantial evidence which supports the verdict. If the jury believed the testimony of the prosecutrix and the other witnesses offered by the State, then in our opinion there was substantial testimony to support the finding of the jury that the defendant did take Emma Blankenship from her father for the purpose of concubinage, and with the intent to have illicit intercourse with her. The intent of a party in the doing of any particular act is seldom susceptible of positive and direct proof. The intent is a mere invisible resolve of the human mind and ordinarily must be gathered from the acts and conduct of the party charged with the commission of the act. Here we have proof that the defendant clandestinely got the female from her home and from the control of her parents, takes her behind him on his horse, reaches the Salem church and under the pretext that it was raining and that the creeks were up, goes into the church and there remains all night, undertaking, as testified to by the prosecutrix, to have sexual intercourse with her. It was shown in evidence that the creeks to which reference had' been made, which might interfere with their reaching home, had already been crossed, and that the church was lo1cated beyond the creeks. It was also- shown that people resided in the neighborhood of the church, where, if the defendant had simply desired proper shelter and comfort for the girl as well as himself, he would have sought shelter with some of the neighbors. That the defendant took this girl into that church with the criminal intent of having sexual intercourse with her, if her testimony is to be relied upon, we think there can be no question, and his intention to have such intercourse is further emphasized by his solicitation to have intercourse with her the next morning on his way home. This testimony, together with that of Mr. Hoag and Miss Hoag, shows a state of facts from which the jury were authorized legitimately to find the intent of the defendant in taking the girl from her home.

The rule of law in this State has been firmly fixed and repeatedly announced that where there is substantial evidence tending to support the verdict of a jury this court will not undertake to retry the case upon the facts disclosed by the record, but will defer to the finding of the jury and trial court. [State v. Smith, 190 Mo. 706; State v. Payne, 194 Mo. 442; State v. Groves, 194 Mo. 452; State v. Williams, 186 Mo. 128; State v. Williams, 149 Mo. 496; State v. Swisher, 186 Mo. l. c. 8.]

IV.

Finally, it insisted by appellant that the verdict returned in this cause is without form and void and no judgment can rest upon it. We cannot agree to this contention. The verdict is substantially in good form with the exceptions of the spelling of the word penitehtiary, which is spelled in the verdict “Pentenure.” While it must he conceded that the spelling of the place of imprisonment does not conform to the well-recognized method of spelling that term, yet the meaning is made manifest, and no one could for a moment he misled in the interpretation of the verdict simply by the wrong letters in spelling it. In State v. McNamara, 100 Mo. l. c. 109, this court had to d'eal with the misspelling of this identical term. In that case it was spelled ‘ ‘pertentiary. ’’ In treating of that verdict this court said: “Nor should the judgment be reversed because the jury in their verdict misspelled the word ‘penitentiary;’ the word as spelled in this record looks like ‘pertentiary,’ but no' one could for a moment mistake the meaning.”

We have carefully considered all the disclosures of the record pertaining to the trial of this cause. The jury had the witnesses before them and presumably followed the uniform rules in respect to determining the credibility and weight to be attached to their testimony. They made their finding and returned a verdict which met the approval of the trial court. We are unwilling to say that there was m> substantial evidence supporting their verdict, and finding no reversible error the judgment of the trial court should be affirmed, and it is so ordered.

All concur.