text:
    Wells, Appellant, v. The City of Weston, Respondent.
    1. The legislature can not authorize a municipal corporation to tax, for its own local purposes, lands lying beyond the corporate limits.

      Appeal from, Weston Court of Common Pleas.

    This was a petition filed by John B. Wells to set aside a sale of his land, made under the authority of the city of Weston, for the payment of a tax which the city claimed the right to levy and collect, and to enjoin the execution of a deed. The 5th section of the 1st article of the act to incorporate the city of Weston, approved March Sd, 1851, provides, that “ the inhabitants of said city shall have power to purchase, receive and hold property, both real and personal, within said city ; to purchase, receive and hold property, real and personal, beyond the city, for burial grounds, and for other public purposes.” The 1st section of the 5th article conferred upon the inhabitants power “to levy and collect taxes on all property, real and personal, within the limits of the city, not to exceed one per cent, per annum upon the assessed value thereof, and may enforce the payment of the same in any manner to be provided by ordinance, not repugnant to the constitution of the United States and of this state.” The 36th section of the same article conferred the power “to assess and collect a tax on all real estate outside of and adjacent to the corporation, to the distance of one-half mile; Provided, that no tax shall be assessed as aforesaid of more than one-half of one per cent, per annum.” The 39th section authorized the city “to make all ordinances which shall be necessary and proper for carrying into execution the powers specified in the act, so that such ordinances be not repugnant to, nor inconsistent with, the constitution of the United States.” . Under the 36th section of this act, the city, on the 25th of April, 1851, passed an ordinance providing “that a tax of one-half of one per cent, be levied upon all property, real and personal, within half a mile of the limits of the city.”
    On the 15th of August, 1851, an ordinance was passed authorizing the sale of land upon which the taxes should be unpaid, and providing the mode of making the sale. The 5th section authorized the execution of a deed ,to the purchaser, after the expiration of the time to redeem.
    Under the authority conferred by the charter, and pursuant to the provisions of these ordinances, a tax of one-half of one per cent, was levied on the land of the plaintiff, lying outside of the city limits, but within half a mile therefrom; and on the 8th of October, 1852, the land was sold by the city collector for the tax, and bought by the city.

      A demurrer to the plaintiff’s petition, showing all the facts, was sustained by the court below; and the plaintiff appealed. The cause was argued in this court by Messrs. Abell, String-fellow and Varies, for appellant; and by Mr. Gardenhire, for respondent. The following is a very general and meagre statement of the points argued:

      Abell, and String fellow, and Vories, for appellant.
    I. So much of the charter as authorized the city to assess and collect a tax on land lying beyond the limits of the city is unconstitutional. 1. The constitution is not a mere limitation, but a grant of power. The government does not possess all power not prohibited, but only such as is granted. 2. There is no specific grant of the power in controversy, nor is it included in the grant of legislative power. (1 Dana, 501; 5 Dana, 30, 31; 6 Barr. 507; 4 Harrington, 479 ; 4 Hill, 145 ; 9 Gill & Johns. 365 ; 7 Gill & Johns. 7; 1 Bay, 98.) 3. It can not be derived from the power to organize municipal corporations, which is not a substantive, independent power, but a mere means of carrying into execution other powers, and is limited by the end to be accomplished. (Marshall, O. J. 4 Wheat.) 4. Nor can it be derived from the power to tax. (4 Hill, 82 ; 4 Comstock, 423, 424.) 5. The power in question is not only not granted, but is expressly prohibited by the constitution, both by the clause prohibiting the exercise of judicial power by the legislature, by the declaration, ‘1 no person shall be deprived of life, liberty or property except by the judgment of his peers, or by the law of the land,” and by the declaration, that “no private property ought tobe taken or applied to public use without just compensation.” 6. The power claimed is in effect a power to take private property from one and give it to another, which is prohibited by the fundamental principles of free government, (Story, J. 2 Peters; Scudder v. Trenton, Dela. Falls Co. Saxton, 694,) and it violates the “ inalienable right of life, liberty and the pursuit of happiness.”
    II. No power is given by the charter to sell lands outside of the city for taxes, and it will not be presumed. (9 Mo. Rep. 513 ; 4 Peters, 513 ; 4 Halsted, 352.)
    III. The city has no capacity by her charter to purchase lands lying outside of the city, for the purpose of collecting her taxes. (4 Shep. 224 ; 2 Scamm. 87.)

      Gardenhire, for respondent.
    The 36th section of the 5th article of the act to incorporate the city of Weston, is constitutional. 1. The power of the general assembly is unlimited, except when restrained by the constitution. (1 Tucker’s Com. 4 ; 1 Kent, 493 to 501; 20 Wend. 381; 1 Hill, 329; 9 Mo. Rep. 507; 13 Mo. Rep. 412-13;' 15 Mo. Rep. 22. 2. Such an exercise of power is not restrained by the constitution. (9 Mo. Rep. 507 ; 13 Mo. Rep. 412-13 ; 15 Mo. 1, 22, 668 ; 18 Mo. Rep. 210, 214, 215, 238 ; 19 Mo. 12, 15; 11 Mo. 102, 104, 105; 15 Pick, 60; 4 Cow. 421; 4 Peters, 516, 561, 563; 4 Wheaton, 428; 24 Wend. 68.) 3. It is not taking private property for a private purpose, or private property for a public purpose, but simply authorizing the assessment of a tax for public purposes. (4 Pick. 463 ; 12 Pick. 477; 23 Pick. 394-5 ; 2 Porter, 296, 303; 3 Paige, 73, 74 ; 24 Wend. 68.) 4. The city had power to sell to enforce the payment of the taxes, (Art. 5, § 1 of the charter, 9 Mo. Rep. 509 ; 13 Mo. Rep. 41,) and to purchase. (Art. 1, § 3 of the charter, R. C. 1845, 231 ; § 1, p. 236 ; § -23.) 5. The 19th section of the Declaration of Rights, does not require equality of taxation, but simply that all property subject to taxation shall be taxed in proportion to its value. The property subject to taxation is determinable by the general assembly. (5 Pike, 204; 5 Dana, 31; 15 Mo. Rep. 24, 25, 26.)
   Leonard, Judge,

delivered the opinion of the court.

The question that has been argued before us upon this record, and the only one that we have considered, is, whether it is competent for the legislature to confer upon the city of Weston authority to tax, for local purposes, land lying beyond •the corporate limits. We have considered the matter with all the care that it is our duty to do, when we are required to decide upon the constitutional validity of a legislative act; but being clearly of opinion that this provision of the charter violates the constitutional rights of the citizen, which we are bound to protect, we are constrained to pronounce accordingly. The judgment upon the demurrer will therefore be reversed and the cause remanded.

As the very purpose of instituting government is the protection of the citizen in his person and property, power to violate these rights would seem to be quite beyond the lawful authority of any government; and certainly the legislative department of this government can not arbitrarily take the property of one citizen and give it to another, and, of course, can not authorize others to do so. This is not within the power of any properly constituted government, and our American governments are expressly prohibited from taking private property, even for public use, without compensation to the owner. To justify even such an invasion of private property, it must be shown that the use for which it is about to be taken is a public one, and that the compensation to be given has been sufficiently secured to the party; and certainly, from the very purpose of all just governments, and this express provision in our own constitution, we may safely imply a constitutional prohibition against the arbitrary taking of private property for private use without any compensation. This, however, seems to be substantially the authority here given: those who live in the town are authorized to exact annually from those who live adjacent to it, a certain portion of their property, to be applied, under their own direction, to their own local purposes. And this we think can not be done under our government, which was instituted exclusively for the protection of individual rights, and where private property is expressly protected from any appropriation of it, even to public use, without full compensation to the owner.

It is true, the legislature possess the uncontrolled power of taxation, with the single limitation that “all property subjeet to taxation shall be taxed in proportion to its value;” and this authority to tax, they may undoubtedly delegate to subordinate agencies, such as county tribunals and municipal corporations, to be assessed and applied locally; but here the attempt is to authorize a municipal corporation — charged with the subordinate government of persons and things within its limits, and having, as incident to this, the power to tax these persons and things for local purposes — to impose a tax upon the lands lying beyond its limits ; or, in other words, arbitrarily, under the mask of a tax, to take annually from those who are without its jurisdiction a certain portion of their property lying within a half mile of the corporate limits ; which we think can not be done. Although it be true, as a general proposition, that the legislature can not delegate their legislative power, but must exercise it themselves' under their appropriate responsibilities; yet the practice of creating municipal corporations — with subordinate legislative power over the local affairs of the inhabitants, and, as incident to this, with authority to impose taxes upon the persons and things within the local jurisdiction in order to supply the local necessities — being firmly established, and daily practiced -by our American governments when our constitution was adopted, must he considered as an ordinary legislative power, and one, of course, that our legislature may lawfully exercise. But no instance, it is believed, can be found where these corporations have been clothed with power to tax others not within their local jurisdiction for their own local purposes ; and if the legislature possess the power, now claimed, over private property, they ought to exercise it themselves, and not delegate it to those whose interest it is to ubuse it.

It maybe often difficult to draw the line between a legitimate exercise of the taxing power and the arbitrary seizure of the property of an individual, or of a class of individuals, for local or general purposes, under the mask of this power. In Chaony v. Hooser, (9 Ben. Munroe, 330,) the question was as to the constitutionality of a law extending the limits of the town of Hopkinsville, for the mere purpose, as the party alleged, of bringing his property within the corporation as a subject of taxation ; and the Judge, who delivered the opinion of the court, remarked, “ this is not the case of vacant land or of a well improved farm, occupied by the owner and his family for agricultural purposes, and which, without being required for either streets or houses, or for any other purpose of the town but that of increasing its revenue, is brought within its taxing power by an act extending its limits. Such an act, though on its face simply extending the limits of a town, and presumptively a legitimate exercise of power for that purpose, would, in reality, when applied to the facts, be nothing more or less than an authority to the town to tax the land to a certain distance outside of its limits, and, in effect, to take the money of the proprietor for its own use, without compensation to him.” Again, he observed, in reference to some limit in the exercise of legislative discretion in the imposition of taxes, that limit can only consist in the discrimination to be made between what may with reasonable plausibility be called a tax, and for which it may be assumed that the objects of taxation are regarded by the legislature as forming a just compensation, and that which is palpably not a tax, but is under the form of a tax, or some other form, the taking of private property for the use of others or of the public, without compensation. The case must be one in which the operation of the power will be, at first blush, pronounced to be the taking of private property without compensation, and in which it is apparent that the burthen is imposed without any view to the interest of the individual in the objects to be accomplished by it. If it be so, no matter under what form the power is professedly exercised, whether it is in the form of laying or authorizing a tax, or in the regulation of local divisions, or boundaries, which result in a subjection to local taxes; and whether the operation be to appropriate the property of one or more individuals without their consent, to the use of the general or local public, or to the use of other private individuals, or of a single individual, — the case must be regarded as coming within the prohibition contained in this clause, or tbe constitution is impotent for the protection of individual rights of property from any aggression, however flagrant, which may be made upon them, provided it be done under color of some recognized power.” -

Without, however, expressing any opinion upon imaginary cases, it is sufficient for the decision of the case now before us, that the legislature can not authorize a municipal corporation to tax, for its own local purposes, lands lying beyond the corporate limits ; and upon this principle, the judgment of the circuit court is reversed and the cause remanded.


source: Caselaw Access Project

author: Leonard, Judge,

license: Public Domain

text:
    Slover, Appellant, v. Muncy, Respondent.
    1. The list of delinquents, which the road overseer is required to place in the hands of the justice, (R. C. 1845, tit. Roads and Highways, art. 1, § 45,) is for the information and government of the justice, whose duty it becomes to issue a summons against such delinquent, and is not intended as a written complaint against the party for his information. No written complaint is necessary.
    2. In the circuit court on appeal, after an appearance and trial on the merits before the justice, it is no ground for dismissing a proceeding, commenced under the statute in the name of a road overseer against a delinquent hand, that the summons, which is required to issue in.the name of the road overseer “ to the use of the road district,” simply describes the plaintiff as “ road supervisor,” without specifying the district, this being specified in the entry of judgment.

      Appeal from Barry Circuit Court.

    This was a proceeding commenced before a justice of the peace, under sections 44, 45, 46 and 47, of article 1 of the act concerning “Roads and Highways,” (R. C. 1845.)
    On the 26th of March, 1855, there was filed with the justice a list of names, with a figure opposite each, at the foot of which was the following memorandum: “ You will please issue on the above delinquent list. Abraham Slover, supervisor.” On the next day, the justice issued a summons against Muncy, the defendant, whose name was on the list, requiring him to appear on the 11th of April, and answer the complaint of “ Abraham Slover, road supervisor.” On the day appointed, the plaintiff and defendant appeared before the justice, and a judgment was rendered in favor of the plaintiff, to the use of his road district, for three dollars and posts. The justices’docket specified the district of which plaintiff was overseer. The defendant appealed to the Circuit Court, where he renewed a motion made before the justice to dismiss the cause, which was sustained. The plaintiff excepted and appealed to this court.

      Gardenhire, for appellant.
    1. The proceedings of road overseers against delinquent hands are special and summary, and no appeal lies from the justice in such cases. (6 Mo. 166.) 2. The Circuit Court erred in dismissing the cause, as there was a substantial compliance with the law, which is all that is required in proceedings before justices. (15 Mo. Rep. 442-3.)

      F. P. Wright, for respondent.
    The appeal was properly dismissed. 1. The list filed with the justice did not specify whether the delinquency consisted in failing to attend, or in failing to obey orders, which are two separate offences, with different penalties. The list was too uncertain to authorize the justice to issue a summons. (R. C. 1845, p. 967, § 44, 45.) 2. The summons did not issue in the name of the overseer, to the use of his road district, as required by the statute. The statute is penal, and must be strictly complied with.
   Leonard, Judge,

delivered the opinion of the court.

The proceedings before the justice were, we think, sufficient to retain the case in court, and therefore the Circuit Court erred in dismissing it. The cause should have been tried anew, on the merits, and of course the judgment must be reversed and the cause remanded, when the defendant will have an opportunity of insisting upon any more substantial defence he may have. The statute direction to the overseer to deliver a list of delinquent hands to some justice of the township, is for the information and. government of the justice, whose duty it then becomes to issue a summons against each delinquent, and to proceed therein as in ordinary cases. (R. G. 1845, tit. Roads and Highways, art. 1, secs. 44, 45, 46, 47.) The law does not require any thing to be put into .the list except the names of the persons to be proceeded against, and of course does not intend it as a written complaint against the party for his information. These defendants have the same means of knowing what they are sued for that other-defendants have in ordinary cases in justices’ courts.

The suit is to be commenced in the name of the overseer to to the use of his road district; in other words, it is conducted in his official and not in his individual capacity, and the present summons, in describing the plaintiff as road overseer or supervisor, (which is the same thing,) sufficiently indicated this, although it was indefinite as to the specific district. This defect, however, was cured in the entry of the judgment which designated the particular road district of which the plaintiff was overseer, and certainly there is no principle upon which an error of this character in the process to bring a party into court, ought to have the effect, after an appearance and trial on the merits, of requiring the Circuit Court, upon an appeal, to dismiss the whole proceeding.

• The alleged errors in the proceedings of the justice may all very well be considered of that class that the Circuit Court, upon an appeal, is required to disregard. (R. C. 1845, tit. Justices’ Courts, art. 8, sec. 13.)

The judgment is accordingly reversed, and the cause remanded ;

Judge Ryland concurring.


text:
    O’Donoghue, Respondent, v. Corby, Appellant.
    1. A refusal to deliver up a chattel to the owner on demand, without lawful excuse, is a conversion.

      %» It is no excuse for refusing to deliver up to the owner a paper evidencing a debt, that the debt is not justly owing, nor can it be imposed as a condition to the delivery that he shall refund what he has already received upon it.
    3. In an action of trover, for the conversion of a paper evidencing a debt, the measure of damages .is prima facie the amount the paper calls for, though this may be reduced by showing payment, or that the amount is not justly due, or by other evidence that the value is less than it purports to be.

      •Appeal from Buchanan Court of Common Pleas.

    This was an action in the nature of trover, for the conversion of a paper, upon which was an account against the Hannibal and St. Joseph Railroad company.
    The petition stated that the plaintiff was lawfully possessed of the account as of his own property; that it was audited and allowed, and in such a condition that, under the by-laws or rules of the company, he was entitled to demand payment of it from the defendant, who was the treasurer ; that he presented it for payment to the defendant, in St. Louis, who then paid one hundred dollars upon it, and agreed to pay the balance of $264 upon their return to St. Joseph, under which agreement the plaintiff delivered the account to him, and that the defendant refused to pay the balance on demand; whereupon the plaintiff demanded the account, which the defendant had refused to deliver up, and had converted to his own use, to the damage of the plaintiff, &c.
    The defendant answered that the account contained false charges, and was allowed by the auditing committee under a mistake as to the facts, which were well'lcnown to the plaintiff, and that payment had been withheld by direction of the president of the company. He denied the conversion of the paper, and stated that he had offered to deliver it up if the plaintiff would refund the one hundred dollars received upon it, which the plaintiff had declined to do, and that he was therefore forced to retain it for his own protection, as it was his only voucher for the payment.
    Upon these pleadings, the case came to trial. Neither party offered any evidence, and the court instructed the jury to find for plaintiff the sum of $264. Several instructions asked by the defendant were refused, and he appealed to this court.

      H. M. Vories, for appellant.
    1. The facts stated in the petition show that this action, which is in the form o£ trover, can not be maintained ; but that if plaintiff had any cause of action, it was on the defendant’s promise to pay the balance of the account. (Duncan v. Fisher, 18 Mo. 403.) 2. A demand and refusal may or may not amount to a conversion, and this is a question of fact, which should have been left to the jury, as also the amount of damages. (2 Greenl. Ev. § 644-5; 2 Saund. 47, e. ; 2 Mod. 144 ; 18 Mo. Rep. 170.) 3. To maintain this action, the plaintiff must have had a complete property in the note and a right to the immediate possession. (1 Chitty’s PL 170, and cases cited.) In this case, the plaintiff had delivered up the account to defendant as treasurer for one hundred dollars and his promise to pay the balance. He could not rescind the contract and demand the account without returning the money received.
    Gardenhire, for respondent.
    Whether this case is treated as trover for the account or assumpsit for the balance due, all the allegations of the petition necessary to a recovery were admitted by the answer, and nothing was proved in avoidance. If the case is treated as trover, the demand and refusal were admitted, which was prima facie a conversion. (1 Cow. 322 ; 2 Mass. 398.) And so the plaintiff’s property in the account was admitted. (7 Johns. 254; 10 Johns. 172.) If the case is treated as assumpsit, the promise to pay the balance was admitted.
   Leonard, Judge,

delivered the opinion of the court.

There are only two questions in this record' — 'whether the conversion of the instrument sued for was admitted by the pleadings, and if so, whether the amount the paper called for was prima facie the proper measure of the damage. The instructions need not be considered except as they tend to raise these questions — both of which must be answered in the affirmative. It is true, a demand and refusal is not a conversion, but only evidence of one; and the reason is, the party may have had a lawful reason for what he did. Here, however, he states the reason, and as it is altogether insufficient, his refusal was without a lawful excuse, and therefore, without any thing more, a conversion of the property to his own use.

The defendant paid a hundred dollars to the plaintiff on the order when it was first presented, and promised to pay the balance upon the return of the parties to St. Joseph. Being subsequently advised, as he states in his answer, that there was some fraud or mistake in the settlement, so that the plaintiff was not entitled to the money, he not only declined paying the residue, but refused to restore the paper unless the plaintiff would return the hundred dollars he had already received. Clearly, the alleged fraud or mistake, if proved, would have been no ground for withholding the order, although it may have been a very good reason, if true in fact, for withholding payment ; and the defendant certainly had no right to impose any condition upon the plaintiff to entitle him to the possession of his own property.

This instrument was, it seems, an account settled between the plaintiff and the Hannibal and St. Joseph Railroad company, which not only imported that the sum stated was due from the company to the plaintiff, but entitled the latter to the money upon presenting it to the company’s officer for that purpose. The amount therefore that the instrument called for was, prima facie, the value of it; and, in the absence of any other proof, the proper measure of the plaintiff’s damages. (Sedg. on Dam. 2d ed. ch. 19, p. 488, and cases there cited.) The jury have found accordingly, under the instructions of the court, and no error, in point of law, has been committed. It was competent for the defendant to have met this prima facie case, by showing that the instrument was of less value than it purported to be ; or, indeed, that it was of no greater value than the paper upon which it was written, by showing payment, or the facts set up in the answer, or any facts' impeaching the validity of the instrument ; but he declined going into proof upon this point, and must abide the result. (Sedg. on Dam. above referred to.)

Judge Ryland concurring,

the judgment will be affirmed.


text:
    Higgins, Defendant in Error, v. Dellinger, Plaintiff in Error.
    X. A party who is compelled to pay a note which he signed as security for another, who gave it for money borrowed by him as agent for a third party, may recover the amount directly from him for whom the money was borrowed ; and it makes no difference that the agent did not disclose his agency, or that the money was loaned and the note signed by the security upon his individual credit.
    2. A letter written by the party sought to be charged as principal, not denying his liability, but regretting his inability to meet the demand, is evidence sufficient to sustain a finding by a jury of the fact of agency, although written in answer to a letter falsely stating that he had signed the note.

      Error to Cole Circuit Court.

    Action for money paid by plaintiff to the use of the defendant, Frederick Dellinger.
    At the trial, it appeared in evidence that in 1848 Samuel Dellinger applied to William C. Young, stating that his brother, the defendant, who was ihen in Virginia, had written requesting him to send him some money, and that he had none on hand, and desired to borrow. Young consented to loan him $300, and at his request enclosed a draft for that amount in a letter to the defendant. In the spring of 1849, Young applied to Samuel for security for the money loaned, who thereupon executed a bond for the amount, with plaintiff as security. At the foot of the bond, a blank was left opposite the first seal for the signature of the defendant, which, however, was never obtained. This bond was afterwards assigned by Young to W. P. Riggins, and was allowed as an offset in a suit brought by plaintiff against said Riggins. The present suit is brought to recover the amount thus paid by plaintiff.

      Young testified that he loaned the money to Samuel Dellinger upon his individual responsibility, and did not know the defendant in the transaction. He did not know whether Samuel owed the defendant that amount, or whether he loaned it to him. He had previously heard him say that the defendant had an interest in the estate of a deceased brother, who died in Pulaski county, Missouri.
    The plaintiff read in evidence two letters from defendant to him, expressing regret at his inability to relieve him from the payment of the bond given to Young and a desire that an arrangement previously made that the money should be paid out of his share in the estate of his deceased brother might be carried out.
    The defendant, in rebuttal, read in evidence a letter from the plaintiff to himself, in reply to which the two letters above referred to were written, in which it was stated that the note given to Young was signed by the defendant.
    The Circuit Court gave the following instructions asked by plaintiff, to which the defendant excepted:
    1. If defendant procured Samuel Dellinger to get the money for him, and got Young to send it to him, and he received it, the jury must find for the plaintiff, and may allow interest; and in such case, it can make no difference that Samuel gave his own note for the money, with plaintiff as security.
    3. If the money was borrowed by Samuel Dellinger for the defendant, the fact that Young looked to Samuel and the plaintiff alone for payment can not prevent a recovery against the defendant.
    The court gave the following instruction, of its own motion, to which the defendant excepted : “If the jury believe from the evidence that Samuel Dellinger borrowed the money loaned by William C. Young for himself, and not as agent of the defendant, and the said Samuel loaned it to the defendant, and that Samuel Dellinger, as principal, and the plaintiff as security, gave their bond to Young for the amount, the estate of Samuel Dellinger is liable to the plaintiff for the amount of said debt, and not the defendant.”
    There was a verdict for the plaintiff.

      M. M. Parsons, for plaintiff in error.

      White and Gardenhire, for defendant in error,
    cited Story on Agency, § 58, 59.
   Leonard, Judge,

delivered the opinion of the court.

If Samuel Dellinger borrowed the money as the agent of his brother Frederick, and afterwards, to secure its repayment, gave his own note, with the plaintiff, as his security, who subsequently paid the money, it was the duty of the defendant to refund it to the plaintiff, and the law will imply a promise between these parties to that effect; and if this were so, it is quite immaterial in this case that the agent did not divulge his agency, or the name of his principal, or that the money was loaned originally by Young, and the contract of suretiship subsequently entered into by Higgins, upon the individual credit of Samuel Dellinger. If, however, Samuel Dellinger borrowed the money for himself, either to pay a debt he owed his brother, or to make a loan to him, then Frederick was not liable to the plaintiff, but to his brother’s estate. This, we think,.is the law of the case, and substantially the instruction the court gave the jury, and there is no ground for disturbing the judgment.

In Story on Agency, § 270, it is said: “If the agent contracts in such form as to render himself personally responsible, he can not afterwards, whether his principal be or be not known at the time of the contract, relieve himself of that responsibility. Rut, although the agent may thus bind himself personally, yet this by no means shows that the principal may not also be bound as a party to the contract through his agent; for there is no doubt that parol evidence is admissible in behalf of one of the contracting parties to show that the other was an agent only in the sale, although contracting in his own name, so as to fix the real principal.” In Hopkins v. Lacouture, (4 La. An. Rep. 64,) Porter, justice, in delivering the opinion of the court, after referring to some common law authorities upon the question how far a power executed in the name of the agent hound his principal, remarks : Be the rule, however, as it may be in that system of law under which these .opinions were expressed, we apprehend it is clear in ours that a power .executed by an agent in his own name, does bind the principal when he acts in the business entrusted to him, and according to the power conferred. The liability of the principal depends on the act done, and not on the form in which it is executed. The only difference is, that when the agent contracts in his own name, he adds his personal responsibility to that of the person who has empowered him.” And these remarks are adopted by Story, with approbation, in the section before referred to. In Higgins v. Senior, (8 Mees. & Welsh. 440,) Mr. Baron Parke said, in delivering the opinion of the court, “ There is no doubt, when an agreement is made, it is competent to show that one or more of the parties were agents for other persons, and acted as such agents in making the contract, so as to give the benefit of the contract on the one hand to, and charge with liability on the other, the unnamed principal, and this, whether the agreement be or be not required to be in writing by the statute of frauds; and this evidence in no way contradicts the written agreement. It does not deny that it is binding on those whom, on the face of it, it purports to bind, but shows that it also binds another, by reason that the act of the agent, in signing the agreement in pursuance of his authority, is in law the act of the principal.” The principle of these cases is the same as of a dormant partner, where, though the person furnishing goods to the ostensible partners intended at the time to give credit to them only, yet he may afterwards pursue his remedy against the dormant partner, when discovered.

It is said to be impossible to reconcile the American cases upon the question of the liability of the principal, when the obligation is executed in the name of the agent only ; and if the instrument here given, to secure the repayment of the money, were, as it appears on its face to have been, a bond, it, of course, was not obligatory as such on the defendant. We think, however, that this is not at all material in the present case, and that, looking to the substance of the transaction, we may disregard the form in which it was clothed, and hold that, if the money were borrowed through his agent, upon an obligation that could have been enforced against the agent only, that as he would have been bound in that case to have indemnified his agent, he was equally bound to indemnify the agent’s security ; and thatfthe request of the agent to the plaintiff, to enter into this contract of suretiship, may very well be considered as the request of his principal, from which to imply a promise on his part to indemnify the securityj

It is insisted, however, that there was no evidence of agency to warrant the instructions the court gave, or to justify the finding of the jury ; but we think otherwise. The money was forwarded to the defendant as soon as it was borrowed: he received it, and used it; and when afterwards informed that his name was on the note for its repayment, and he was called upon as the real debtor to pay, so far from denying his liability, he expressed his regret at his inability to meet it. These letters, however, it seems, were in answer to one in which it was falsely suggested that Tie had signed the note; but certainly this does not diminish the force of the implied admission, so clearly made in them, that the money was borrowed for his use, and that he was the party who ought to repay it. He might forget whether he had signed the note given for money his brother had borrowed for him; but we can hardly suppose that, upon the false suggestion of this letter, he could be led into the belief that the money for which the note was given was borrowed for him, and ought to be repaid by him, if the fact were altogether otherwise. Indeed, these letters show, we think, quite satisfactorily, that Samuel Dellinger borrowed the money, not to pay any debt due from him to his brother, but as his brother’s agent, in anticipation however, and under the expectation entertained by both, that it would be refunded out of Frederick Dellinger’s share in his deceased brother’s estate. We are satisfied that justice has been administered between these parties according to law.

Judge Ryland concurring,

the judgment is affirmed.


text:
    Batchelor, Respondent, v. Bess, Appellant.
    1. Where the amount of damages claimed by the plaintiff in a suit before a justice is not expressly shown, the amount for which he accepts a judgment will be taken as the amount claimed ; and although the plaintiff may in the justice’s court enter a remittitur for the excess recovered beyond the justice’s jurisdiction, he can not be permitted to do this in the circuit court on Appeal, so as to give jurisdiction.
    2. If, in order to authorize the supreme court to reverse a judgment, in a case commenced before a justice, for want of jurisdiction, it must appear that the question of jurisdiction was raised and passed upon in the circuit court; this is sufficiently shown by a motion for a review in which the objection is made, although a motion for a review is not applicable in such a case.

      dip peal from Stoddard Circuit Court.

    This was an action commenced before a justice of the peace on the following instrument of writing :
    “ On or before the 20th day of November, 1854, I promise to pay John Batchelor or order, two hundred and twenty-five bushels of merchandise, corn, to be delivered on the farm I have bo’t of him; value rec’d, this the 19th day of January, 1858. Wm. H. Bess.”
    At the trial, the defendant moved to dismiss the suit for want of jurisdiction. The justice overruled the motion, and gave judgment for the plaintiff for $112 50. The defendant appealed to the Circuit Court, where a trial by the court, without a jury, resulted in a judgment for the plaintiff for ninety dollars. The court filed a written decision, or finding of facts, which stated that the value of the corn, when it became due, was one hundred and twenty-three dollars and seventy-fivo cents, and that the plaintiff remitted $83 75.
    The defendant filed a motion for a review, with reasons, one of which was, that the value of the corn sued for exceeded the justice’s jurisdiction. The motion was ,overruled, and the defendant brought the case by appeal to this court.

      J. W. Morrow, for appellant.
    1. The remittitur in the Circuit Court could not aid the plaintiff. The justice had no jurisdiction, and consequently the Circuit Court could not have any. (R. 0.1845, p. 634-5.) 2. Justices of the peace have no jurisdiction in actions on notes exceeding ninety dollars, to be paid in property. (Martin v. Chauvin, 7 Mo. 277.)
    Hardin, for respondent.
    1. All errors of the justice were corrected by the judgment of the Circuit Court. (R. C. 1845, p. 670.) If the Circuit Court committed error, the case has not been saved properly. No instructions were asked, no evidence preserved, no exceptions saved ; no motion for a new trial, nor any motion in arrest of judgment, &e. The record shows that there was a finding of the facts by the court, and a motion for a review of the judgment; but these were not necessary. (20 Mo. 453.) This finding was not authorized by law, and therefore no part of the record, and can not be used to show error in the judgment. (See the case of Harrison v. State, 10 Mo. 688.)
   Leonard, Judge,

delivered the opinion of the court.

The claim of the plaintiff and the amount adjudged both exceeded a justice’s jurisdiction; for, although the amount of damages claimed by-the plaintiff is nowhere expressly shown, the amount for which he accepted a judgment must be here imputed to him as the amount he claimed. If he had remitted in the justice’s court the excess of damage there found, that would have been sufficient; and such, it is believed, has been the opinion and practice upon this subject. But such a remittitur in the Circuit Court, after the cause has been transferred there, by appeal, can not have the same effect. When the Circuit Court becomes possessed of a cause in this manner, the lawful jurisdiction depends upon the jurisdiction of the first court. If that tribunal had no lawful authority over the case, the Circuit Court can not acquire any by the appeal. This must be so on principle, and if we were to adjudge otherwise, the practical effect would be that, upon an appeal, on account of the defect of jurisdiction, the costs would be thrown upon the appealing party, by the mere act of the adverse party, upon his doing that in the Circuit Court that he might have done in the justice’s court, and which, if done there, would have superseded the necessity of appealing. This defect of jurisdiction is not one of those imperfections in the proceedings of a justice required to be disregarded by the Circuit Court upon an appeal, (R. C. 1845, tit. “Justices’ Courts,” art. 8, sec. 13) ; and, although the remittitur in the Circuit Court, and the judgment there, for the reduced amount, may, in fact, be for the benefit instead of the injury of the party, he has yet a right to insist upon the exercise of the jurisdiction over him, where none exists, as an error to his prejudice, which this court can not disregard.

As to the point that the objection is not properly saved, we remark that the amount of the recovery in the justice’s court appears, of course, upon the record, without any bill of exceptions ; and if, in order to authorize us to correct an error of this character — the exercise of jurisdiction where none exists— it must appear that the attention of the court was expressly called to it, and the matter passed upon, that is sufficiently done here by the motion and reasons for a review preserved in the bill of exceptions, which, although not applicable to a proceeding of this character, is sufficient for the purpose here indicated. The result is, the judgment of the Circuit Court must be reversed, and the suit dismissed, leaving the plaintiff at liberty to bring a fresh suit in either jurisdiction, according to the amount he may seek to recover;

and, Judge Ryland concurring,

it is ordered accordingly.


text:
    Rollins, Respondent, v. Claybrook, Appellant.
    1. Where a written memorandum of a contract of sale does not purport to be a complete expression of the entire contract, and is uncertain as 'to the property sold, this may be designated by parol evidence.
    2. Money paid upon a contract which the other party fails^to perform, may be recovered back as a part of the damages for the non-performance, without a demand.

      •Appeal from, Moniteau Circuit Court.
    Action brought by Rollins against Claybrook, for the breach of a contract stated in the petition to be for the sale of “a certain lot of pork hogs, which the defendant then had up fattening, which were to weigh' in the whole not less than four thousand pounds.”
    The purport of the petition and answer, and of the evidence offered at the trial, is sufficiently stated in the opinion of the court, and it is only necessary to add the written memorandum of the contract, which was as follows :
    “ Hogs bought of G. Claybrook Nov. 12, 1852.
    “ To weigh 200 lbs., $8 85 per 100 lbs.; over 175 lbs., $3 60 per 100 lbs. ; under 175 lbsl, $3 50 per 100 lbs., with privilege of delivering from 4 to 10,000 lbs. ; and also privilege of delivering at Sandy Hook, at $3 50, $3 75 and $4 per 100 lbs. ; and I have also paid said Claybrook $20 to bind said contract, &c. — to be delivered within 1st of November, 1852, and 1st of February, 1853.
    “David E. G.. Rollins.”
    The defendant, after verdict and judgment against him, appealed to this court.

      Gardenhire, for appellant.
    1. The written contract was for “ from four to ten thousand pounds,” saying nothing at all about hogs fattened by defendant or .their minimum value, and of course not binding defendant to deliver any particular lot of hogs. To allow these things to be added by parol was manifest error. (8 Mo. 391.) 2. The money paid could not be recovered back without a previous demand. (16 Mo. 528 ; 18 Mo. 154 ; ib. 375; 19 Mo. 467.)

      E. L. Edwards, for respondent.
    The evidence was properly admitted, as it was not offered to alter, or in any manner change the contract, but tb show what particular hogs were bought. (Smith on Con., marginal p. 29, 30, top p. 94.)
   Leonard, Judge,

delivered the opinion of the court.

The plaintiff seeks to recover damages for the non-delivery of a specific lot of hogs, bought of the defendant, and which the latter engaged would weigh four thousand pounds; and states that he paid the defendant twenty dollars, and made and signed a memorandum of the contract,-which he delivered to the defendant. The latter admits in his answer the making of a contract as specified on the written memorandum ; but insists that it was a contract for the sale of pork by the quantity and not of a specific lot, and that within the time allowed for that purpose he tendered part of the quantity, and would have paid the whole, but the plaintiff refused to receive it. Upon the trial, the written memorandum was read in evidence, and the plaintiff’ was allowed to prove, by parol, that “ the defendant sold a specific lot of hogs, in his pen, fattened by himself, and that the plaintiff was to receive no hog weighing less than one hundred and fifty pounds,” and then gave evidence that the defendant had disposed of this lot elsewhere. No evidence of the demand-of the twenty dollars was given, and the plaintiff, under instructions from the court, had a verdict for thirty dollars.

The only matters now material to the defendant are, the admission of the parol evidence, as to the contract, and the instruction allowing the plaintiff to recover the twenty dollars without a previous demand. Written instruments, executed by the parties themselves, are, in their very nature, most trustworthy evidence of what the parties have transacted. It is their own testimony, that they have furnished against themselves, and, of course, it can not be said of it, as of a witness, that it misrepresents either through ignorance, negligence or design : and being permanent and not subject to decay, like the memory o£ a living witness, it continues to be a faithful memorial of the transaction, no matter what length of time may have since intervened. This superiority of written over oral evidence has induced the legislature to require certain contracts — some on account of the value involved, and others on account of their peculiar nature — to be authenticated by a written instrument; but whether a writing be adopted as the repository of the contract, either by command of the law or by the agreement of the parties, the same rule prevails as to the exclusion of parol evidence. If the instrument import a legal obligation, without uncertainty as to the object and extent of the engagement, it is conclusively presumed that the whole engagement of the parties was reduced to writing, and no cotemporaneous parol evidence is admissible to change the contract, by altering or expunging any of its provisions, or by adding new ones to it. When the written agreement is required by law, this rule is necessary to make the statute effectual; and when the parties themselves have adopted one to express their contract, because they are unwilling to trust to the memory of witnesses, the same rule is necessary to carry out their intention. (Rutland’s case, 5 Co. Rep. 26 ; Stackpole v. Arnold, 11 Mass. 29-30; Smith v. Williams, 1 Murphy (N. C.) Rep. 430.) But this does not apply where the writing is imperfect, and does not import a complete expression of the entire contract. (2 Phil. Ev. 772, 8th Lond. ed. ; 1 Greenl. Ev. § 284, a. ; 3 Cow. & Hill’s notes to Phil’s Ev. 1471-72, and cases there cited; Jeffry v. Walton, 1 Stark. R. 113.) The last case was an action for an injury to a horse hired by the defendant. At the time of hiring, a written memorandum was made to this effect: “ Six weeks, at two guineas. W. Walton.” And it was verbally agreed that the defendant should be liable for all accidents. This evidence was objected to, but received by Lord Ellenborough, who said, “ The written agreement merely regulates the time of hiring and rate of payment, and I shall not allow any evidence to be given by the plaintiff in contradiction of these terms ; but I am of opinion it is competent for the plaintiff to give in evidence suppletory matter as part of the agreement.” The present case is, we think, of the same character. We pass by the fact that the writing was not in any way authenticated by the defendant, so as to make it a written contract on his part, excluding parol evidence, (Tesdale v. Harris, 20 Pick. 12), and was only evidence against him on account of his reference to it in his answer as containing the terms of the agreement, and will consider the matter as if the writing had been signed by him. If we read it without the clause, “ with the privilege of delivering four to 10,000 pounds,” there is no undertaking by the defendant to deliver any specific lot of hogs-, or any definite quantity of pork, and the paper, in that shape, is only a memorandum of the price and the time of delivery; and we do not think the introduction of this clause had any effect, other than that for which it was introduced, to secure to the seller the privilege of delivering, at the same price and time, any quantity of pork not exceeding six thousand pounds over and above the hogs he had sold to the plaintiff, and was, of course, bound to deliver. The instrument, when read as it stands, does not import in itself a legal obligation on the defendant to deliver four thousand pounds of pork to the plaintiff, although it is to be inferred, from reading it, that there was some engagement between the parties not merged in the writing, from the delivery by the defendant of a specific lot of hogs that it was thought would come up to that quantity, or to deliver that quantity by weight. The writing, at the utmost, was only an imperfect instrument of contract on the part of the defendant, and certainly does not import an obligation on his part, as to the property to be delivered, with that degree of certainty that is necessary in order to exclude parol evidence in relation to it.

As to the demand of the twenty dollars, we need only remark that this suit was for the breach of an existing contract, in the part performance of which the plaintiff had paid the money, and which, upon a breach of it, he would be entitled to recover back, in tbe shape of damages, for the non-delivery of the pork, and we must suppose that it was so allowed here by the jury, and, of course, no error has been committed in this matter to the prejudice of the defendant.

Judge Ryland concurring,

the judgment is affirmed.


author: Ryland, Judge,

text:
    Pasley, Respondent, v. Kemp, Appellant.
    1. The supreme court will not reverse a judgmentfor the giving of an instruction which could not have prejudiced the appellant, nor for the refusal of instructions not warranted hy the evidence.

      •Ap-peal from Callaway Circuit Court.

    The case is stated in the opinion of the court.

      Gardenhire and H. C. Hayden, for appellant.

      J. F. Jones, for respondent.
   Ryland, Judge,

delivered the opinion of the court.

This is an action of slander, for words charged to have been spoken by the defendant of the plaintiff. The words charged in the first count are as follows: “You (meaning plaintiff') were a damned rogue in Virginia, and have followed stealing since you (meaning plaintiff) have been here, (meaning in Callaway county, Missouri); you (meaning plaintiff) stole my (meaning defendant’s) staves and nails.” In the second count the words are thus charged: “I (meaning defendant) gave Samuel Pasley (meaning plaintiff) a damned good cursing yesterday : he (meaning plaintiff) was a damned rogue in Virginia, and has followed stealipg since he has been here, (meaning Callaway county, Missouri) : he (meaning plaintiff) stole my (meaning- defendant’s) staves and nails, and I (meaning defendant) can prove it — God damn him.”

The defendant denied the speaking of the words in his answer ; denied all the material allegations in the plaintiff’s petition. The cause was tried and the jury returned their verdict for the plaintiff, and assessed his damages at $750. The plaintiff remitted the sum of $250, and judgment was rendered in his favor for the balance. The defendant moved for a new trial, also in arrest of judgment, which being overruled, he excepted, and brings the case here by appeal.

In this court, the defendant (that is the appellant) objects to the judgment of the Circuit Court, and insists that it ought to be reversed, because the testimony did not prove the words as laid down ; that, whether the words were proved or not was a question for the court, and if not proved, the plaintiff ought to have been nonsuited ; that the .2d and 3d instructions for the defendant ought to have been given to the jury ; and that the judgment ought to have been arrested, because the petition of the plaintiff is insufficient. Now as respects the proof of the speaking of the words, we think that it was sufficient to carry the case to the jury. The testimony, as set forth in the bill of exceptions, substantially proved some of the charges in the words, as laid in the petition. It was proved that defendant said, “ Samuel Pasley (meaning the plaintiff) was a damned rogue, for he stole his (defendant’s) staves and nails, and that he could prove it — Grod damn him.”

There was much proof about the charge of being a “ rogue in Virginia, and keeping up stealing out here.” Indeed, the proof manifestly shows the conduct of a man of violent passions and regardless of his words, and the only excuse for his conduct, the habit of drinking spirituous liquors to excess — a most reprehensible habit, and rather an aggravation than excuse for an evil tongue. The words proved are almost identical with the words imputing one of the charges — “he stole my staves and nails.”

We think the words, as laid, were sufficiently proved, at least to carry the case before the jury, and we have no doubt the defendant’s counsel, at the trial, thought so likewise, otherwise he never would have omitted the proper time to make his objection for defect in proof. He would have made it before the Circuit Court, and not waited until after verdict, and then, for the first time, make it in this court; but we have given him the full benefit of his objection by considering it here, and we must say that the evidence sufficiently supports the charge. There is nothing, then, in “the first objection taken by appellant’s counsel.

As to the instructions. The first instruction given for plaintiff must have some words left out or misplaced. It has no meaning as it now stands ; that appellant’s counsel says it is nonsensical; be this as it may, it could have done the plaintiff no good, nor the defendant any harm. It has nothing of point or pith in it; and, I have no doubt, it was a clerical mistake or blunder. It can do no harm. We will not send the case back for such an instruction. I have not thought it necessary to copy the instructions for the plaintiff, as the first is the only one complained of. The appellant askéd nine instructions, and the court gave all but the second and third, and the refusal to give these is the principal ground of error complained of in this court. In the opinion of this court, the Circuit Court very properly refused to give the two instructions, neither one of which was warranted by the evidence in the case.

The second instruction is as follows : “ 2d. When the slanderous words used impute the act to have been done in another state, it devolves upon the plaintiff, before he can recover, to prove either that he has sustained a special damage thereby, or, according to the laws of that state, the act charged would, if true, subject the plaintiff to an indictment for a crime involving moral turpitude, or subject him to an infamous punishment, if such words, as used, would not import a crime indictable at common law.” There is nothing in the evidence warranting this instruction. The crime charged is stealing staves and nails— not in Virginia, but in Callaway county, Missouri. This, then, was a sufficient reason for refusing this instruction, if it were otherwise free'from objection, which we,, by no means, admit. (3 Murph., N. C., 463 ; 14 Johns. 234.)

The third instruction: “If one be charged with stealing under such circumstances as shtfw that no felony was capable o£ being committed, or at least was not committed, but that the act was a simple breach of trust, or a mere trespass, an action of slander can not be sustained therefor, and the jury must find for defendant.” This instruction was also without any foundation. There was nothing in the case to authorize the court to give it. It was, therefore, properly refused.

In looking over the whole record, we are satisfied the case was properly and fairly submitted to the jury. The court instructed the jury on the prayer of the defendant, that, before the jury can find for the plaintiff, they must be satisfied from the evidence that the words proved are substantially the same words as those charged in plaintiff’s petition, and it is not sufficient that they contain substantially the same charge in different phraseology; for equivalent words of slander will not do, and that they must be satisfied that as many of the identical words as essentially constitute the slander have been proved precisely as laid, and must be proved in form as laid ; that malice is essential to slander, and it must be shown by the plaintiff' before he can recover. If defendant uttered enough of the identical words charged in plaintiff’s petition to carry with them the slanderous imputation alleged, the law presumes he did it with malice ; but he may rebut this presumption: and if the jury believe from the evidence that the defendant uttered the words without malice, and to those only who knew as much about the matter as he did, and were understood by all of them as referring to the acts of the plaintiff, not amounting to larceny, then the words were not slanderous, and the jury will find for the defendant.”

From the facts in proof on this record, surely the defendant; has no right to complain of the instructions. Under our statute of 1847, the petition is sufficient, and the court did right in overruling the motion in arrest. Upon the whole case, there appears no error calling for the Correcting power of this court.

Judge Leonard concurring,

the judgment below is affirmed.


text:
    McAdams, Defendant in Error, v. McHenry, Plaintiff in Error.
    1. Judgment reversed because it appeared from the record that, after a judgment for costs was rendered against the plaintiff, a final judgment by default was rendered against the defendant without his appearance and without setting aside the former judgment.

      Error to Greene Circuit Court.

    The case is stated in the opinion of the court.
    Hendricks, for plaintiff in error.

      Wright and Edwards, for defendant in error,
    cited 10 Mo. 259 ; Evans v. King, 7 Mo. 411; Whitney v. Budd, 5 Mo. 443 ; 10 Mo. 459.
   Ryland, Judge,

delivered the opinion of the court.

This was a suit by attachment, commenced in the Greene Circuit Court. The writ was made returnable to the July term, 1855. The record shows that, at the September term, 1855, on the 8th day of the term, it being the 18th day of the month, the plaintiff obtained leave for the sheriff to amend his return, and on the same day the court rendered judgment by default against the defendant-for the sum of $252 60 debt, and $8 73 damages for the detention thereof.

Afterwards, on the 20th day of September, the plaintiff filed his interrogatories against the persons summoned as garnishees, and obtained an order on the sheriff to pay over money collected by him by sale of the attached property.

Afterwards, on 21st day of September, the defendant appeared by his attorney, and by leave of the court filed his motion to quash, set aside and vacate the judgment and proceedings in this cause, assigning as reasons therefor: 1st. The whole proceedings are irregular; 2d. The requisites of the law have not been complied with ; 3d. Because the attachment was issued without a bond and endorsement of the approval thereof, as required by law ; 4th. Because the attachment was issued irregularly ; 5th. Because the judgment is irregular and void.

On the next day, this motion to vacate, set aside and quash the judgment and proceedings, was sustained. The entry is as follows, in part: “ And upon inspection of the proceedings in this cause, it is considered by the court that the said motion be sustained and defendant go hence without day, and recover costs, for which execution may issue.”

Afterwards, on the same day, the plaintiff files his bond, which was approved by the court. After this bond is filed, the court proceeds to render judgment again by default against the defendant. This is entered on the same day of the filing of the bond, and of the entry vacating the judgment and quashing the proceedings, and giving judgment against the plaintiff for costs. After the rendition of the second judgment by default against defendant, the plaintiff filed his motion to set aside the order of the court vacating, setting aside and quashing the judgment and proceedings in this cause, which the court overruled. The plaintiff excepted to this action of the court, and filed his bill of exceptions.

And on the same day, the defendant, by his attorney, moved the court to set aside and vacate this judgment last rendered against him by default, because the judgment and proceedings are irregular, and because he had no notice of the proceedings, &c. The court overruled this last motion, and the defendant excepted, and brings the case here by writ of error.

I have seldom been called to the task of deciphering and examining such a record ; its illegibility and jumble of motions demand the reproof of this court. Let the clerk below see to this business in future.

From the record, it would seem that the cause was finally disposed of by a judgment in favor of the defendant for costs. If this be so, the subsequent judgment in favor of the plaintiff was erroneous. The Circuit Court probably intended to cancel only the first judgment against the defendant, leaving the suit standing, to be further proceeded in; if this could be made to appear as the true construction of the record, there would then be no error. But we must be governed by the .record as it stands before us ; and here is a final judgment for costs against the plaintiff, on a motion made by defendant to quash, set aside and vacate judgment and proceedings.

We will send the case back for further action in the Circuit Court. Where a final judgment has been rendered against a party for costs, it would be irregular, without notice or appearance of the adverse party, to set aside such a judgment, and then render a judgment for the opposite party. But here, without even setting aside this judgment for costs, the court renders judgment for plaintiff, with a final judgment previously standing on record in the same cause for defendant. This may be the blunder of the clerk, or it may arise from inattention in making proper entries of the action and rulings of the court. However, to whatever cause attributable, the judgment, in this case, is erroneous, and must be reversed, and cause remanded ;

Judge Leonard concurring.


author: Leonard, Judge, Ryland, Judge. Scott, Judge.

text:
    Vaughn, Defendant in Error, v. Tracy, Plaintiff in Error.
    1. Possession of real property under an unrecorded deed is not, as a matter of law, actual notice to a subsequent purchaser, within the meaning of our registry act.
    2. But a majority of the court are of opinion that it is evidence o£ notice, to be submitted to a jury.
    3. The actual notice required by the registry act is not certain knowledge, but such information as men generally act upon in the transactions of life.

      Error to Osage Circuit Court.

    This was an action to recover the. possession and obtain the legal title to one acre of ground upon which was a horse gristmill.
    At the trial before the court, without a jury, the plaintiff, Yaughn, read in evidence articles of agreement, under seal, between himself and William R. Huckstep, dated March 3, 1845, by which the latter obligated himself, upon the payment of a certain sum, to convey to the former eighty acres of land. This agreement was not acknowledged, but was recorded on the 18th of September, 1846. It recited that one acre of the tract, “whereon the mill how stands,” had been previously sold by Huckstep to Vaughn for the sum of sixty dollars.
    The defendant, Tracy, claimed title under a deed from Huck-step dated February 13, 1852, conveying eighty acres, including the acre in controversy, duly acknowledged and recorded.
    At the trial, it appeared that plaintiff was in possession o£ ■the mill at the date of the deed to the defendant, and had been for some six or seven years previous, but wasmfterwards ousted by the defendant.
    The court below gave the following declarations on motion of the defendant:
    1. If the defendant, without notice of any adverse title or possession of the land in controversy, purchased the same bona fide and for a valuable consideration from Huckstep, and Huck-step executed add acknowledged a deed therefor to defendant, and the same has been recorded in the recorder’s office of Osage county, the verdict ought to be for the defendant.
    2. Although plaintiff may have been in possession of the land in controversy, and may have had a title bond or instrument in writing under seal, acknowledging the payment for said land from Huckstep, yet the plaintiff could not recover in this action, unless it appears that the instrument of writing read in evidence was duly acknowledged and recorded prior to the record of the defendant’s deed, unless it appears from the evidence that defendant had actual notice of the plaintiff’s title at the time of the defendant’s purchase and payment for said land.
    The following declaration asked by the defendant was refused :
    3., The possession of the plaintiff can not affect the defendant’s title unless the defendant had actual knowledge of such possession at the time of the execution of his deed or the payment of the purchase money.
    The court found a verdict for the plaintiff, and gave a judgment for the possession and vesting in him the legal title.
    No finding of facts appears in the record.

      Parsons, for plaintiff in error.
    1. The instrument of writing between Huckstep and Yaughn was inadmissible. It was not acknowledged, and consequently could not legally be admitted to record, so as to give constructive notice of title. Nor was it shown that Tracy, prior to his purchase and reception of the deed from Huckstep, had any knowledge of the existence of such an instrument. (R. C‘. 1845, tit. Conveyances, § 42, p. 226 ; Popham v. Baldwin, 2 Jones, Exch. 320.) 2. The third instruction of defendant should have been given. Bare possession, without any other evidence, direct or circumstantial, is not notice of title. (8 Mo. 19, 149; ib. 803; 14 Serg. & Raw. 333; 1 Hare, 52 ; 3 Paine, 421, and authorities there cited.)

      J. W. Morrow, for defendant in error,
    that actual possession was notice to all the world of title, cited 4 Mo. 62 ; 4 N. Hamp. 404; 2 Yerm. 544 ; 1 Littell, 350 ; 4 Dana, 264 ; 4 B. Monroe, 466 ; Landes v. Brant, 10 How. U. S. R. 348 ; 7 Watts, 384; 16 Yes. 249.
   Leonard, Judge,

delivered the opinion of the court.

The question made by this case is, whether possession of real property under an unregistered déed, is actual notice to a subsequent purchaser, within the meaning of our registry acts.

In order that we may put a correct interpretation upon these words, it may not be improper to refer to the state of the law upon this subject when the act was passed. The words of the lawgiver tacitly refer to the circumstances by which he is surrounded, and we must read them in connection with those circumstances, in order to put a sensible construction upon them. After courts of equity had established their jurisdiction in enforcing the specific performance of contracts for the purchase of real property, they did not content themselves with administering a mere personal equity against the seller, but went yet further, and recognized not only the personal obligation on the part of the seller to transfer the legal title, but an interest in the buyer in the land sold, constituting an equitable ownership on his part, as contradistinguished from the legal ownership which remained in the seller. When, therefore, a contest arose between these two species of ownership for superiority, the courts laid down the principle that the latter should give way to the former, except in the hands of a purchaser for value without notice. The effect of this was, that a valid contract of purchase bound not only the seller, but also the land — not only in the hands of himself and of his heirs, and voluntary grantees, but also in the hands of a purchaser for value, whose conscience was affected by notice of the existing equitable right of the first purchaser. Now as it is a rule not only of morals, but also of public policy, that every one should use his own property, and conduct his own affairs, with proper prudence, so as not to hurt his neighbor, and that those who should fail to do so ought to answer for any damage they might occasion, the courts held that the equitable ownership should prevail, not only against a purchaser with actual notice, but also against one who bought under such circumstances as would have afforded him notice had he used proper care in making the purchase, and the distinction was thus made in English equity between actual and implied notice. The former was actual knowledge or information ; and the latter, facts and circumstances, not amounting to knowledge or information, from which the law conclusively presumed notice, and which it would not allow to be contradicted by contrary evidence. Actual notice, like any other fact, might be proved by direct evidence, or inferred from the facts and circumstances of the transaction ; but however proved, whether by direct evidence, or inferred from other facts, it was actual notice, and clearly distinguishable from implied notice, which was the notice the law imputed to a party under certain circumstances, and which it would not allow to be contradicted, no matter how the fact might be ; in other words, implied notice seems to be a “ presumptio juris et jure” grounded upon the facts and circumstances relied upon for that purpose. (2 Sug. on Vendors, 278 ; Plumbe v. Flintt, 2 Anst. 438 ; Kennedy v. Green, 3 My. & K. and 2 Lead, cases in Eq. 99.) We remark here, that in England it was always held to be a want of proper care to buy from one out of .possession, without inquiring into the cause of it, and an averment that the seller was in possession was essential in a plea of a purchase for a valuable consideration without notice. (Jackson v. Rowe, 4 Russ. 514, and cases there referred to.) And, therefore, if the land sold were in the occupation of another, and the buyer neglected to inquire into the title of the possessor, the law, from this circumstance, conclusively imputed to him notice of whatever title the party in possession had, because, if he had inquired, as it was considered his duty to have done, he would have obtained this information, and all injury to the party would have been avoided. When the registry acts first came under the consideration of the English court of equity, they applied their own principles to them ; and while they admitted that the legal title was bound by the words of the statute, and that the unregistered deed was therefore void at law as against the subsequent registered deed, they held that, if the second purchaser bought with notice of the prior sale, so that his conscience was affected, the land, the sale of which was sufficiently shown by’ the unregistered deed, became bound in equity in his hands, and thus the unregistered deed finally prevailed over the subsequent registered deed with notice, by the aid of the court of chancery ; and the court, at the same time, applied to the case their own doctrine of implied notice, at least whenever the facts and circumstances were so gross as to affect the purchaser with fraud, and a purchase from one of land in the possession of another was always considered of that character. (Le Neve v. Le Neve, 3 Atk. 646.)

The first registry acts in America merely declared the unregistered deed void; in the New England states, generally, without specifying the persons in whose favor they were to be void; but in New York, against subsequent bona fide purchasers only. In New England, where there was no distinct system of equity, the law courts, by an equitable construction of the statute, declared an unregistered deed to be void only against persons subsequently taking a specific interest in the land for value, without notice, and, in this manner, furnished relief to a party holding under an unregistered deed, similar to the relief given by English equity.

In New York, under their statute, the question, who are bona fide purchasers ? became a question of law, and the rules of English equity in reference to actual and implied notice, became rules of law, and were administered in the law courts. (Tuttle v. Jackson, 6 Wend. 213.) In recent revisions of their statute law, several of the states have incorporated this principle of equity into their registry laws, by declaring “ that any unregistered deed shall not be valid, except against a party with notice and in the Massachusetts and Maine revised statutes, the expression is “ actual notice.”

Our original act, passed in October, 1804, (1 Terr. Laws, 46,) declared, “ that the unrecorded deed should be void against a subsequent purchaser for a valuable consideration but in the revision, in 1825, the provision was, that it should not be binding “ except between the parties and such as have actual notice,” and it has so continued ever since ; and now the question is, as already stated, whether possession is actual notice within the meaning of the act ? We think the legislature here referred to actual notice, as contradistinguished from implied notice, both of which were well known terms in our law when the act was passed; and we all concur in reversing the present judgment upon the ground that possession is not, as the Circuit Court seemed to suppose, as a mere matter of law, actual notice within the meaning of our recording acts. 'The case must, therefore, be remanded to be retried, and we defer, until all the circumstances of the transaction shall be developed upon this new trial, our opinion upon the question how far and under what circumstances the fact of the open and noto/rious possession and apparent ownership of real property is to be considered evidence of actual notice, so as to bring a second purchaser within the provision of the statute, and to avoid his deed as far as it may conflict with the prior unrecorded deed under which this possession is held.

Speaking alone for myself, I may be allowed to state my present views of the subject, without, however, committing myself to any settled opinion. In all the states, under the recording acts, as they were originally expressed, possession was always considered either as implied notice of the unregistered deed, not to be contradicted, or as evidence of the fact of notice, to be submitted to the triers of the fact, and which might therefore be met and repelled by contrary evidence. It has, however, been recently held in Massachusetts, (Pomeroy v. Stevens, 11 Mass. 244,) that possession is not evidence of notice to be submitted to the jury, without other evidence showing that the party against whom it is offered knew or imputed such possession to a title in fee, or some higher right than that of mere occupancy, although the previous decisions, both in Massachusetts and Maine, seemed to be that the statute had not changed the existing law, but only incorporated in it the principle previously acted upon (Curtis v. Mundy, 3 Mass. 405) ; and there can be no doubt but that, previously, possession in both these states had always been considered at least competent evidence to go to a jury upon the question whether the party had notice of a prior deed. (Per Wilde, justice, in McMehan v. Grilling, 3 Pick. 155; Matthews v. Demerit, 22 Maine, 312.) Actual notice, under the Statute, is a fact, and of course may be proved as any fact; and as men rarely purchase houses to live in, or improved farms to reside upon, without a personal examination, when it is within their power, it seems to me that the fact of possession may, under ordinary circumstances, be fairly presumed to have been within the purchaser’s knowledge at the time hp bought'. The notice required by the statute is not certain knowledge, but such information as men generally act upon in the transactions of life. (Curtis v. Mundy, 3 Met. 405.) And, in our state, where the land is generally in the occupation o£ the owners in fee, it would seem that,r if knowledge is brought home to the purchaser that a third person is in the possession and apparent ownership of the land, it ought, under ordinary circumstances, to be deemed sufficient information to the second purchaser that the possessor is the owner in fee, under a title derived from the former owner. It is true, the circumstances may be such as to show conclusively that the purchaser did not, in fact, know that any one was in possession, or if he did know it, the possessor may have disclaimed the ownership ; and, in such cases, the jury, of course, could not find the fact of actual notice. It is quite a mistake to suppose, because the statute requires actual notice, that therefore it can only be proved by direct evidence. The actual notice, the fact to be proved, is the matter prescribed by the statute ; the competency of the evidence is another thing to be settled by the courts, according to the ordinary rules of evidence ; and the sufficiency of the evidence to establish the fact, is yet another question, which is submitted to the jury and must be passed upon by them.

The judgment is reversed, and the cause remanded.

Ryland, Judge.

I concur in the views of Judge Leonard, set forth in the above opinion; as well in reversing the judgment as in his individual views.

Scott, Judge.

For my views on this question, I refer to the case of Beattie v. Butler, (21 Mo. 313.)